I have a question about this. I thought that whether or not a given practice is unconstitutional sex discrimination is constitutional is subject to an intermediate standard compared to a stricter standard for racial discrimination? If so, there would be room to say that separate male/female dress codes are constitutional, while something like separate dress codes by race obviously would not be?
Also, I could see someone from an originalist standpoint taking a absolutist position that the various clauses of the 14th Amendment were enacted to prohibit any sort of racial discrimination at any level of government, but weren't meant to apply to sex discrimination at all. However, that probably only has 2-3 votes even on this SCOTUS.
I admit I'm not sure of the boundaries between strict scrutiny and intermediate scrutiny. Separate bathrooms probably satisfy strict scrutiny. However, I'm not convinced that separate dress codes are supported by even intermediate scrutiny. The Constitution cannot be read in a way as to require only females to wear skirts.
As I understand it, sex discrimination does fall in the intermediate scrutiny bucket, though it tends to be on the stricter end of intermediate.
Here is a case out of the Fourth Circuit dealing with this in the context of charter schools receiving public funding; requiring a skirt for female students was found to be impermissible sex discrimination. This seems to be a case where the code falls closer to a uniform, instead of just being a standard that has to be satisfied but where the choice of what clothing to wear is left open, which presumably would not be an issue.
https://www.nytimes.com/2022/06/17/us/nc-school-dress-code-skirts-lawsuit.html
That's my understanding as well. My point was that dress codes that require only females to wear skirts do not satisfy even intermediate scrutiny. (I struggle to even find rational basis for such requirements.) If the 14th Amendment held sex discrimination to its highest level of scrutiny (essentially, de facto ERA), strict scrutiny would be required and I do believe gender-based bathrooms would still satisfy that level of scrutiny (something that is definitely not the case with respect to separating bathrooms on account of race). Prior to the recent panic over trans issues, are there even laws that prohibit one from entering a restroom of labelled for the opposite gender?
The decision you mention has a complicating factor though. It's a charter school, which implicates the state action doctrine.
The Trans issue right now is stuck on the question of whether it is possible to change sex/gender which holds up the more interesting question of whether the state can set clear lines about what is required and which ones.
It would seem pure self-id defeats the purpose of any sex/gender based accommodations that survive strict scrutiny, but at that point could a state require medical transition? Social transition? Some level of demonstrated intent to undertake either?
The same would seem to be true of dress code. Is a desire to opt-in to a dress code on a regular basis different from doing so once or twice?
Now the place where this would seem to be relevant is actually not with restrooms but with gender quotas for hiring/promotions.
If they are intended to advance women, then allowing an individual to "temporarily opt-in" with no prior history or evidence of social transition outside the office would seem to negate the purpose, but there are some laws that would seem clash with policing that on non discrimination grounds.
Similarly, while Shaun King situations are rare, social media is going to make them less so.
In short, the real significance of Trans debates is likely to be a renewed focus on the constitutional flaw of any AA system. How can you run racial preferences with no uniform definition of race, or record keeping?
