The federal appeals court based in Denver agreed on Tuesday that a boy could pursue his claims of sex-based discrimination against a Colorado Springs charter school after he was disciplined for wearing earrings under a boys-only prohibition on the accessory.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined a trial judge relied on the wrong legal standard to dismiss the claims of “John Doe” against Rocky Mountain Classical Academy. It is not appropriate to ask whether the dress code imposed “comparable burdens” on girls and boys, wrote Judge Joel M. Carson III, but instead whether the government had an important objective in treating the sexes differently.

The allegations do not reflect that “RMCA has an ‘exceedingly persuasive justification’ for its sex-based classification or that its classification serves important governmental objectives through means substantially related to those objectives,” wrote Carson, a Donald Trump appointee, in the panel’s April 30 opinion.

Igor Raykin, the attorney who brought the case on behalf of Doe, said he had never encountered a school district in Colorado that attempted to disenroll a boy for wearing earrings, as occurred with Doe.

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“We’re talking about kicking out a 5-year-old boy for the horrible crime of wearing earrings to school. Normally, who cares?” he said. “This was really about equal protection.”

The attorney for the school did not immediately respond to an email seeking comment.

Doe enrolled in Rocky Mountain Classical Academy in the fall of 2019. Although the dress code only allowed girls to wear earrings, Doe, who identifies as male, wore small, blue earrings that were otherwise consistent with school policy.

School staff allegedly told Doe’s mother that Doe could not wear earrings, and he accumulated “oops slips” for violating the dress code. In December 2019, the school suspended him and then began disenrolling Doe for violating the earring prohibition for boys. Doe filed suit, alleging violations of his constitutional right to equal protection under the laws and of Title IX, the federal law prohibiting sex-based discrimination in educational programming.

In September 2022, U.S. District Court Judge Daniel D. Domenico dismissed Doe’s claims. Domenico, also a Trump appointee, noted the 10th Circuit “never struck down a school dress code on discrimination grounds.”

Instead of analyzing whether Doe had claimed the school lacked a persuasive justification and an important interest in treating the sexes differently, as the U.S. Supreme Court requires, Domenico looked to the Chicago-based Seventh Circuit. Specifically, he cited the Seventh Circuit’s determination that dress codes imposing “comparable burdens” on men and women were permissible.

“Ultimately, the uniform policy places the same essential burden on both boys and girls: they must limit their individuality and adhere generally to a traditional, conservative appearance,” Domenico wrote. “While that means girls have a few more options than boys when it comes to dresses, capris, earrings, and haircuts, that is simply a reflection of the community norms for what constitutes a traditional, conservative appearance for boys and girls.”

Doe appealed to the 10th Circuit, where the three-judge panel was concerned about Domenico’s dismissal of the case without exploring the school’s justification for prohibiting boys’ earrings specifically.

“So, a girl can get a good education with earrings, but when you put the earrings on a boy, he can’t learn? Doesn’t that have to be explored on more than what we have?” asked Judge Carolyn B. McHugh, a Barack Obama appointee.

“The school doesn’t want the students — I think this is implicit in any dress code — to attract attention by dressing differently,” observed Judge Harris L Hartz, a George W. Bush appointee. “In other words, limit expression so you don’t create any controversy or you’re not saying, ‘Look at me, I’m special.’ Schools can do that, can’t they?”

“Earlobes are earlobes,” responded Raykin.

The panel concluded Domenico incorrectly looked at the comparable burdens the Rocky Mountain Classical Academy dress code broadly imposed on boys and girls. He should have instead scrutinized the “exceedingly persuasive justification” for the boys’ earring ban.

“Until RMCA provides a justification for their sex-based classification,” wrote Carson, “we cannot evaluate whether RMCA’s justification is ‘exceedingly persuasive’ or whether the dress code’s treatment of boys is ‘substantially related’ to their — at this point unstated — objectives.”

Based on the 10th Circuit’s directive, Raykin said he did not expect future proceedings to focus, as Domenico did, on the dress code’s overall aim of fostering a “conservative appearance” among its students. He added he had “no idea” what the school’s important objective was in maintaining the boys’ earring ban.

The case is Doe v. Rocky Mountain Classical Academy et al.