As a consequence of the enactment of the Oregon Equality Act, Section 29. ORS 659.850 was amended as follows:

(1) As used in this section, 'discrimination ' means any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on age, disability, national origin, marital status, race, color, religion, sex, or sexual orientation¹. 'Discrimination' does not include enforcement of an otherwise valid dress code or policy, as long as the code or policy provides, on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.

(2) No person in Oregon shall/may not be subjected to discrimination in any public elementary, secondary or community college education program or service, school or interschool activity or in any higher education program or service, school or interschool activity where the program, service, school or activity is financed in whole or in part by moneys appropriated by the Legislative Assembly.

(3) The State Board of Education and the State Board of Higher Education shall establish rules necessary to insure compliance with subsection (2) of this section in the manner required by ORS chapter 183.

Gender Expression & Dress Codes

As stated in the Oregon Statute above; "Discrimination does not include enforcement of an otherwise valid dress code or policy, as long as the code or policy provides, on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual."

Dress codes may (or may not) play a role in reducing classroom distractions, socio-economic competition, cultural ostracism and even violence. They may also be used inappropriately to restrict a transgender or gender non-conforming child or youth from expressing their gender identity in a way that is suitable for an educational setting, even though it may be non-stereotypical or incongruent with the child's assigned birth sex.

So how can an administrator, teacher, coach, mentor or other adult authority figure know whether or not a transgender or gender non-conforming child or youth's health and safety will be threatened or compromised by restricting or denying them the opportunity to dress and express themselves in a way that is compatible with their gender identity?

Consider the following:

• 50%+ of transgender and significantly gender non-conforming children and youth ideate suicide as a consequence of the rejection, marginalization and lack of respect they receive when expressing non-stereotypical gender identity. This is the highest suicide-risk rate of any youth population²

Schools with birth-sex specific dress codes could consider making a narrow exception for transgender students. At least one court has said that a school could not prohibit a male student who identified as female from wearing girls' clothes where the district had no specific evidence that plaintiff's manner of dress (rather than his behavior) caused substantial disruption.

1. The Oregon Equality Act defines 'sexual orientation as; an individual's actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth.
2. University of New Hampshire Counseling Center, P. Cody, Ph.D