A New Orleans man who has sued a police officer for threatening to arrest him for wearing a skirt in court may have suffered an insult to his Scottish heritage --- but not a legally actionable injury to his civil rights.

Jeremy Don Kerr showed up in a black pinstriped skirt, hemmed two inches above the knee, for a May 2008 hearing on a misdemeanor charge in New Orleans Municipal Court. Apparently, the judge presiding over the hearing didn't object to his attire, but Officer Glen Tate accosted him as he was leaving the courtroom.

The ensuing confrontation has now brought Kerr to federal court, where he is asking a judge to protect all New Orleans residents from government officials who would deny them “unfettered access to public facilities because of sex discrimination that is based on gender stereotyping.”

The complaint, filed last week in pro per, seeks $1 in nominal damages and injunctive relief under Title II of the Civil Rights Act, which prohibits state and municipal governments from denying access to public facilities on grounds of race, religion, gender, or ethnicity.

Kerr, 37, says he is a “heterosexual male of Scottish ancestry” and began wearing skirts after a friend suggested he would look as if he were in a kilt. “A lot of people seem to believe if I'm in a skirt it must mean that I'm gay,” he told the New Orleans Times-Picayune. “It's a choice in clothing style.”

Tate allegedly queried Kerr about his choice in clothing, asking him why he was “wearing a skirt.” When Kerr did not answer and proceeded to leave the courtroom, the suit says, Tate pursued him, stopped him by force and told him that “unless he is a woman, wearing a skirt is a violation of the court's dress code.”

“Officer Tate then threatened to arrest the Plaintiff if the Plaintiff did not leave the courthouse immediately,” Kerr alleges. “The Plaintiff complied under protest.” Kerr has said he wore pants on a subsequent trip to the courthouse for fear of running into Tate.

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court said employers could be held liable under Title VII for punishing employees who do not conform to the gender stereotypes associated with their sex.

“This Supreme Court ruling is particularly relevant in this case because the Plaintiff's choice of attire is totally unrelated to his sexual orientation,” Kerr argues. “Rather, the Plaintiff's choice of attire is reflective of his ethnic and religious heritage and is an expression of that heritage.”

However, courts have not applied Price Waterhouse beyond the workplace context to discrimination in public facilities. And while Tate may have acted based on a stereotypical view of the male gender, court officials usually have wide latitude in enforcing dress codes.

The proper administration of criminal justice requires that “dignity, order, and decorum be the hallmarks of all court proceedings,” the Supreme Court said in Illinois v. Allen, 397 U.S. 337 (1970).

As a threshold matter, moreover, Kerr probably doesn't have standing to sue because Tate's alleged threat to arrest him is not an “injury in fact.” His misdemeanor case has been dropped and, according to the Supreme Court, “Allegations of possible future injury do not satisfy the requirements of [standing]. A threatened injury must be certainly impending to constitute injury in fact.”

U.S. marshals, not local police officers, maintain the dignity of federal courts so Tate could not arrest Kerr if, perchance, he decides to wear a skirt for an appearance in his civil rights case.

By Matthew Heller
5/7/09