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DMV Sued Over Boy's Right to Wear Makeup in Driver's License Photo

By Brett Snider, Esq. on September 03, 2014 | Last updated on March 21, 2019

A South Carolina boy and his mother are suing the state's DMV over his right to wear his "everyday" makeup in his driver's license photo.

Teresa Culpepper has sued the state and local directors of South Carolina's Department of Motor Vehicles after her 16-year-old son was refused a driver's license photo in June while wearing foundation, mascara, eye shadow, and lip gloss, reports Courthouse News Service.

Can South Carolina's DMV legally tell a boy to take off his mascara for a license photo?

DMV Has Policy Against 'Disguises'

Chase Culpepper, 16, was born male but wears gender-nonconforming makeup and clothing. According to Greenville, South Carolina's WYFF, an employee at the DMV told Culpepper that he couldn't wear "a disguise," referring to his makeup, in his driver's license photo. The lawsuit he and his mother filed in federal court for discrimination insists otherwise.

According to the suit, the South Carolina DMV relied on a policy that a driver's license applicant cannot "purposely alter[] his/her appearance so that the photo would misrepresent his/her identity." As the Culpeppers argue, the makeup and androgynous gender performance are part of Chase's identity; it's only the DMV's gender stereotyping that prevents them from seeing that.

Since the policy is vague and relies on an interpretation of what "misrepresenting his/her identity" means, it gives discretion to DMV employees to determine what is authentic and what is a "disguise." The Culpeppers' suit alleges that this policy leaves applicants like Chase at the mercy of sex/gender discrimination and sex stereotyping.

Sex Stereotypes and Discrimination

Title VII of the Civil Rights Act bars private employers from discriminating against employees on the basis of gender stereotypes (e.g., women who wear pants, men with painted nails, etc.), but state and federal governments are prohibited from the same sorts of discrimination.

If the South Carolina DMV wishes to tell males not to wear makeup in license photos, but allows females the same privilege, then the law could potentially be struck down as unconstitutional. Laws and policies which discriminate based on gender typically must:

Ironically, this standard was first used by the U.S. Supreme Court to strike down a law which created a higher drinking age for males. Maybe its next application will be accompanied by a justified stroke of eyeliner.

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