The United States Court of Appeals for the Seventh Circuit has recently upheld an Indiana high school student’s challenge to the school district’s requirement that male basketball players maintain short haircuts as violative of both the equal protection clause of the federal constitution and Title IX’s prohibition against sex discrimination. Hayden v Greensburg Community School Corp.
The rule at issue, which applied to male, but not to female, interscholastic basketball team members, provided that each player’s hair must be “cut above the ears, eyebrows, and collar.” The stated purpose of the hair length policy was to both “promote team unity” and “project a clean-cut image.”
Noting that gender is a quasi-suspect classification that triggers intermediate scrutiny under the equal protection clause of the Fourteenth Amendment, the court had little difficulty striking down the hairy Hoosier rule upon the basis that such applied only to male athletes and placed no such burden on female athletes. Indeed, the court noted, female athletes were subject to no grooming requirements whatsoever. The court stated, “What we have before us is a policy that draws an explicit distinction between male and female athletes and imposes a burden on male athletes alone . . .”
The court was, however, careful to note that the evidence before it presented a limited record and left open the possibility that had the male hair length rule been shown to be but part of an overall athletic grooming policy where female athletes were subject to “equivalent,” although not necessary identical, limitations and standards, such might survive equal protection and Title IX challenges. Within a concurring opinion, one judge suggested that different grooming standards would not constitute impermissible discrimination if they are comparable, meaning they “find some justification in commonly accepted social norms” or “generally accepted community standards,” be reasonably related to a legitimate school district interest, be applied evenhandedly, and not impose an unequal burden based on gender.