The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear – or don’t – is ubiquitous. From a noted constitutional scholar and commentator, this book examines the rights to expression and equality, as well as the restraints on government power, as they both limit and allow control of our most personal choices of attire and grooming.
See the Table of Contents and Read the Introduction here
US BOOK LAUNCH/PRESENTATION at CUNY LAW September 19, 2013
CANADA Book Launch/Presentation at Osgoode Hall September 23, 2013
UK Book Launch/Presentation: November 26, 2013
Listen to a 5 minute interview with Jacki Lyden aired on NPR’s ALL THINGS CONSIDERED here; a 12 minute interview with Mocrieff aired on NewsTalk IRISH radio here (starts at 35:00); a 60 minute interview on NPR’s The Diane Rehm Show here; a 20 minute interview with Brian Lehrer of WNYC here; a 15 minute interview on LA’s KPCC “AirTalk” with Larry Mantle on school dress codes here; a 60 minute discussion on Wisconsin Public Radio’s The Joy Cardin Show here.
According to a report in the Sun Sentinel by Lisa J. Huriash relying on a police report, a “North Miami Beach police officer has been arrested, accused of refusing to take off a mask he wore while on the street protesting the federal government’s new healthcare law.” The protesting police officer interestingly adopted the Guy Fawkes mask (pictured below) made popular during Occupy protests, as a symbol.
According to the police report, the protesting police officer wouldn’t tell police who he was, “stating his anonymity was his cause, thus the mask. … He stated the mask was used by movement groups around the world for protest.” He was also carrying a gun, but was charged only with obstruction of traffic and “wearing a hood or mask on the street.”
The charge may be a difficult one to make stick. Florida’s anti-masking laws derive from attempts to criminalize KKK activities and are thus linked to intimidation and civil rights violations.
The Florida statute §876.21 definitely applies to the reported conduct:
Wearing mask, hood, or other device on public way.—No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other public way in this state.
BUT, another Florida statute, §876.155 limits the provisions the various anti-masking statutes, stating these statutes will apply only if the person was wearing the mask, hood, or other device:
(1) With the intent to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws or for the purpose of preventing the constituted authorities of this state or any subdivision thereof from, or hindering them in, giving or securing to all persons within this state the equal protection of the laws;(2) With the intent, by force or threat of force, to injure, intimidate, or interfere with any person because of the person’s exercise of any right secured by federal, state, or local law or to intimidate such person or any other person or any class of persons from exercising any right secured by federal, state, or local law;(3) With the intent to intimidate, threaten, abuse, or harass any other person; or(4) While she or he was engaged in conduct that could reasonably lead to the institution of a civil or criminal proceeding against her or him, with the intent of avoiding identification in such a proceeding.
This is unlike statutory provisions in other states, such as New York, which prohibit “loitering while masked” or indeed the new Canadian criminal provision specifically aimed at protesting while masked.
The Florida statutory scheme could certainly be construed to include the protesting police officer’s acts under subsection (4) above, given that he stated he was trying to avoid identification (to protest anonymously) and that he was reportedly charged with another violation (obstructing traffic).
You won’t find a Western clothing manufacturer that openly approves of sumangali labor, but cracking down on it is a different matter. That’s because textile supply chains are vast and mind-numbingly complex. The average Indian T-shirt begins in a cotton field in western states like Gujarat and Maharashtra, where fluffy, plum-size balls are harvested by workers who generally come from the lower castes. From there, the balls are shipped in trucks to warehouses and sold to spinning mills, where machines (like the kind that cut Aruna’s hand) process raw cotton bales into thread. Then workers weave the thread into strips, dye them, and send them to factories that do final processing.
As Liebelson writes, it isn’t simply that the supply chains are “complex,” it’s also that manufacturers including retailers have great resistance to transparency. As I’ve suggested elsewhere, one possibility is to demand labeling on our clothes that would reveal not only its source but the conditions under which it is made – - – there could be a label “sweat free” analogous to the label “organic.” And there’s more on the relationship between work (including labor under chattel slavery) and the clothes we wear in the chapter “dressing economically.”
As the holiday season begins, retail stores vamp up to sell merchandise to crowds of shoppers, but also to stop shoplifting. Retailer, Hot Mama, is in hot water for its particularly aggressive anti-theft policy, which has employees racially profiling customers according to the ACLU of Colorado.
Hot Mama is a large nationwide retailer, selling women’s clothing in over 40 stores and online. Their anti-theft policy tells employees to identify a potential shoplifter if “a customer that doesn’t look like the typical Hot Mama shopper.” Once identified, the employee should “stick to potential thieves by following them everywhere in the store. Make them feel uncomfortable. Ask questions.” The policy warns that,
“Shoplifters will try to make YOU feel uncomfortable. They may say: ‘Are you following me because of my race?’ Please respond: ‘We like to give each customer one-on-one service.’ Don’t worry about making them uncomfortable. That is your goal in this situation. The more uncomfortable they become, the quicker they leave…forever.”
The ACLU of Colorado finds the language of the policy laden with “subtle and not-so-subtle” references to racial profiling of customers –
“The curious phrasing of this description of a ‘potential thief’ suggests that it is a subtle coded encouragement of racial targeting. Who is and who is not a ‘typical Hot Mama shopper’? A review of Hot Mama’s website, which features an overwhelming proportion of white women modeling the clothing, suggests the answer. The price point of the clothing, along with the dearth of models of color on the website, suggests that Hot Mama regards its ‘typical Hot Mama shopper’ as an upper-middle-class white female, and that it is persons of color who are more likely to be identified as ‘potential thieves’ on the ground that they don’t ‘look like the typical Hot Mama shopper.’”
Moreover, the ACLU notes that the policy’s acknowledgement that customers will ask if employees are racial profiling creates a suggestion for employees to do so. The ACLU also references a Hot Mama manager who questioned the racialized policy and was told that some stores had “problems with black gangs.” Saying the policy is in violation of federal and state law, the ACLU adds that the policy “creates an environment in which people of color will be followed, intimidated, and have their rights violated when attempting to shop at Hot Mama.”
The ACLU’s action against Hot Mama is not isolated — just in October, both Barneys and Macy’s made news and faced lawsuits for alleged racial profiling to mitigate shoplifting. The Macy’s suit includes allegations against the NYPD for their role in the shoplifting prevention operation, creating clear state action for a possible Equal Protection challenge.
As the holiday shopping season begins, hopefully stores will learn from these mistakes and make sure to prevent theft with a non-racialized means, implementing policies that do not disproportionately impact shoppers of color. It may be wise for businesses to avoid policies that give an employee the goal of making a customer so uncomfortable that she will “leave … forever,” when the customer asks whether she is profiled for her race. Indeed, such strong language leads one to wonder whether the policy is meant to prevent theft, or to prevent certain groups from shopping at their stores and from wearing their clothing.
George Zimmerman, charged (albeit belatedly) and notoriously found not guilty of the killing of Trayvon Martin, is in the news yet again, for another involvement with the law based on allegations of his violence.
For some, this (re)opens the issue of the trial for the death of the 15 year old Martin. This includes pundit Geraldo Rivera, who famously blamed Trayvon Martin’s “hoodie” and continues to do so. Rivera writes that although Zimmerman
may be nuts now, but was he nuts then? That’s the bigger issue, whether he is crazy because of the trauma of Trayvon’s death and his trial and being broke and besieged and aimless or was he crazy the night he killed the kid?
This seems within the realm of possibility. However, the validity Rivera’s obsession with Trayvon Martin’s hoodie as “thug wear” seems less plausible, arguing that even if Zimmerman did not act in self defense but was
a hunter looking for game that night, picking a fight because with his hand near that concealed weapon ready to draw and fire he knew he had the advantage, the verdict would have been closer.
Still, he would have been acquitted, because of the hoodie.
As I argue elsewhere, hoodies are ubiquitous items of clothing having no connection with the propensity to commit violence.
Earlier this month, an 18 year-old transgender student fought and won a battle to wear a tuxedo in his yearbook photo, despite his school’s initial reaction that the photograph would not conform with “community standards.”
As reported, the South Texas school refused to allow high school senior Jeydon Loredo to wear his tuxedo in his senior photograph because “they were a conservative school” and as a consequence, his “photograph would be included only if he wore feminine attire, such as a drape or blouse.” As discussed in Dressing Constitutionally, yearbook photos have frequently been a locus for regulating students’ gender expressions, but the administration’s reasons often do not justify their actions because of First Amendment and Equal Protection Clause protections.
Joining Jeydon and his family, the Southern Poverty Law Center wrote the school district officials a demand letter, describing how the refusal to include the photograph “violates the student’s freedom of expression, which is protected by the First Amendment. It also violates the Equal Protection Clause of the 14th Amendment, which protects the student from discrimination, as well as Title IX, which bars discrimination on the basis of sex by any education program receiving federal money. Refusing to publish the photograph would even violate the school district’s own anti-discrimination policies.” The Center then threatened a suit against the District if they did not make a decision to include the photograph of Jeydon in the tuxedo within eight days.
Shortly after receiving the Center’s demand letter, the District came to a resolution that it would allow the photo, saying the decision was “in the best interest of the student and the school and the community.”
But as the Center said in a recent Press Release, the District allowing the photograph is much larger than just the best interest of Jeydon and the community — it sends the message “that transgender students should be recognized as important members of their communities rather than ostracized and subjected to discrimination.”
A production of Terrence McNally’s play Love! Valour! Compassion! at the Actors’ Theatre in Grand Rapids, Michigan, has drawn criticism for its onstage nudity, raising questions about public financing of artistic pursuits. Actors’ Theatre, although an independent organization, reportedly received $19,000 in funding from the public Grand Rapids Community College and the group performs at GRCC’s Spectrum Theatre. The play, according to a favorable local review, “follows a group of eight homosexual males” who discuss AIDS, infidelity, and “other ‘real people’ situations.” At least one character is nude for “a good portion of the play.”
The problem, according to some, is that GRCC is endorsing nudity as entertainment, with taxpayer money. Concerned citizen Joan Ridderbos, who reportedly did not see the play but did hear about it from friends at church, made the complaint to a meeting of the board of trustees. Trustee Richard Ryskamp agreed, having previously accused GRCC funding of being used to “mock Jesus Christ” and “popularize homosexual conduct.” One suspects the upset is about something more than nudity on stage.
The Grand Rapids controversy and its articulation in concern about nude entertainment highlights another controversy discussed in Dressing Constitutionally. In 1975, the Supreme Court decided Southeastern Promotions Ltd. v. Conrad, a case about the musical Hair, which also features onstage nudity. As discussed in the book, it is clear that a production of Love! Valour! Compassion! is protected by the First Amendment. The GRCC’s budget, however, is fair game for the political process, and concerned citizens may attempt to censor the stage through a denial of funding, recalling efforts in the 1980s and 1990s to defund the National Endowment for the Arts and NEA v. Finley.
School officials have suspended an eighth grader at Anderson County Junior/Senior High School after he refused to remove his Vera Bradley “purse.” Skyler Davis, 13, was reportedly called to the Assistant Principal’s office and told to either remove the bag or face suspension. Davis refused, and the school sent him home.
As we have seen in other situations, timing and shifting rationales are suspicious factors in this dress code enforcement. According to Davis’s outraged mother, Leslie Willis, he had been wearing the bag since August without issue. Meanwhile, Anderson County School District Superintendent Don Blome explained the rule: “all students, whether male or female, are prevented from having bags, purses, satchels and backpacks in the core classrooms like English and math.” No gender discrimination here! All bags are banned equally. Davis’s mother, meanwhile, insists that the student handbook contains no mention of bags or purses, noting: “Skyler has been going to school since August with that same Very Bradley bag on, hasn’t taken it off. What is the problem?”
Perhaps the problem had nothing to do with the bag. With his mother’s support, Skyler returned to school, wearing the bag, and was again suspended. This time, school administrators reportedly told him he had never been suspended for wearing the bag, but in fact for “foul language.” Willis says she was told that “the suspension wouldn’t be lifted until Skyler stops wearing the purse.”
A few constitutional issues are raised here: gender discrimination (girls can wear purses; boys cannot) and freedom of expression (Davis claims to express himself through his bag). The school might counter by showing a rule of equal application to female and male students and, as explained in Dressing Constitutionally, “[attire] bearing words or symbols is much more likely to meet the expressive threshold necessary to invoke First Amendment protections.” Davis, however, might note how enforcement of a dress code often serves as a proxy for enforcement of expressive and gender norms. And a hopeful sign: the support of his mother and many others, including Vera Bradley. Perhaps sensing opportunity, the company has offered Davis words of support — and products.
The controversy surrounding celebrity rapper Kanye West’s adoption of the Confederate flag for his new tour is expertly analyzed by Elon James White in his article in his article in The Root and there has been a call to boycott the tour gear.
But what if a student wanted to wear Kanye West attire to school, perhaps accepting West’s articulation about the symbol’s meaning?
Kanye West notwithstanding, the school can most likely constitutionally prohibit the student from wearing Confederate flag gear. Here’s my recent column for the London School of Economics blog, and we’ve previously covered the Confederate flag issue here and here.
As reported, on a weekly basis, Georgia correctional officers force Bryan Kawand Sims to cut his hair and shave his face, an act that Sims alleges violates his Rastafarian faith. So last month, when the prison denied Sims a formal exemption to the prison’s hair prohibition, Sims filed federal suit against the Baldwin State Prison, alleging the policy violates federal law and Sims’s 1st and 14th Amendment rights.
As stated in his pro se complaint, before filing suit, Sims met with the prison chaplain to provide evidence to the prison regarding the sincerity and tenets of his beliefs. Shortly after their last meeting, however, Sims was “locked in a cage” where he refused to shave his chin area because it would “violate his religious beliefs.” In the cage, an officer threatened to deprive Sims of access to the law library and then eventually “muscled down” Sims in order to shave Sims’ “hair and face … by force.”
Sims is now forced to shave or cut his hair on a weekly basis in accordance with the prison’s grooming policy. As stated in the Baldwin State Prison’s Offender Orientation Handbook, the prison prohibits “the growing or wearing of the hair on the head long enough to extend onto the collar of an ordinary shirt, cover any part of the ears or eye brows, or to be longer than three (3) inches on top.” The prison also bans incarcerated persons from having “goatees, beards, and similar facial adornments.”
Sims has alleged multiple claims in his handwritten complaint. First, by denying Sims’s religious exemption, the Prison “refuse[d] to recognize the Rastafarian religious practice of the sacred dreadlocks … and ordered [Sims’s] hair be clipped and chin be shaved, immediately denying defendant to his [federal statutory] rights and his protection under the 1st and 14th Amendments.” Sims also alleges multiple claims for the verbal and physical harassment he has suffered over his refusal to cut his hair, including explicit and blatant disregard for his religious preferences and for the actual or threatened physical force officers use to shave, or force Sims to shave, his head and face.
For relief, Sims wants the prison to recognize his Rastafarian faith, and “specifically provide a religious exemption profile permitting [him] sacred dreadlocks to grow 3-feet and prohibit the cutting of specifically the chin area.” He has also requested compensation for court fees and mental anguish from the constant harassment of the correctional officers.
As discussed in Dressing Constitutionally, courts have found that in order to avoid violating a person’s constitutional rights, a prison must to make accommodations for religious reasons, but the considerations of those rights will be balanced against any safety and other concerns the prison may put forth, making Sims’s chances for relief uncertain as he begins the second year of his life sentence.
New York Criminal Court Judge Felicia Mennin has dismissed a criminal complaint charging Loitering for the Purpose of Engaging in a Prostitution Offense (NY Penal Code § 240.37) for facial insufficiency in her opinion in People of State of New York v. McGinnis based in part on the failure of the officer’s description of the defendant’s attire to be meaningful.
The criminal complaint alleged, that the officer observed “defendant wearing BLACK PEA COAT, SKINNY JEANS AND PLATFORM SHOES, which were revealing in that OUTLINE OF DEFENDANT’S LEGS [sic].”
Here’s Judge Mennin on the sufficiency of the officer’s statements:
The informant’s emphasis on the defendant’s clothing as a tell-tale sign that she was marketing herself commercially is astonishing. The defendant is alleged to have been wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes. This information was again supplied in the supporting deposition in response to a request to ”fill in the blank.“ Any current issue of a fashion magazine would display plenty of women similarly dressed. However, the choice of such outfit hardly demonstrates the wearer’s proclivity to engage in prostitution. Indeed, the complaint’s characterization of the jeans as ”revealing“ because they ”outlined the defendant’s legs“ seems more to be expected in the dress code of a 1950′s high school than a criminal court pleading.
That there is some type of dress that might be more probative of a willingness to engage in prostitution is also discussed by Judge Mennin, with reference to the cases cited by the State:
The defendant’s clothing in this case stands in stark contrast to the clothing relied upon as circumstantial proof of loitering for purposes of prostitution in the cases cited by the People. For instance, in Byrd, the defendant’s clothing exposed her buttocks. In Jones, the defendant was allegedly dressed in a skirt and a black bra with no other covering on her upper body. In Farra S., the defendant was wearing a shirt, the cut of which revealed the sides of her breasts. In Koss, one defendant was dressed in a black leopard two-piece bathing suit and high heels. In such instances, reliance upon attire as a factor appears more reasoned.
As a footnote to this passage, Judge Mennin addressed the implicit claim that a peacoat might be more provocative during the winter:
Granted, this incident occurred in the middle of winter. However, a ”pea coat“ is still standard issue to members of the U.S. Navy and models of such coats are made and sold routinely to men, women and children, and blue jeans, skin-tight or baggy, are practically an American icon. Accordingly, it is difficult to imagine what, if any, significance at all the defendant’s clothing might have in this case, either individually, or taken collectively with other meaningful circumstances, as any indicia of a link to prostitution. It would appear that the officer was just tempted to ”fill in“ this blank of the supporting deposition because it was there.
Judge Mennin’s opinion, which has generated some media coverage, highlights the perfunctory nature of most criminal complaints as well as the tenuous link between attire and sex work. While her opinion does not hold that attire can never be circumstantial evidence of loitering for the purpose of prostitution, she certainly concludes that the attire must approach indecent exposure.