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; a 15 minute discussion with Margaret Ramirez on CUNY’s “Book Beat” here.
Watch for “Fashion and the Law” panel at CUNY Graduate Center (February 25, 2014); Dressing Constitutionally talk at Columbia Law Center for Gender & Sexuality (March 5, 2014); and Author Meets Reader Panel at Law & Society Conference (June 2014).
The Classical Academy High School, a Colorado public charter school, has required one of its students to cut his hair, despite a “senior contract” creating a “hairstyle exception” for the school’s graduating seniors. As reported, the senior class can negotiate a contract with the school administration to get certain perks. This year’s contract included a dress code exception, which promised “no gender restriction on hairstyle or length.” The school’s dress code, which requires uniforms and emphasizes modesty, typically requires a boy’s hair to be no longer than the bottom of the ears on the sides and no longer than the bottom of the collar in the back.”
Senior Charlie McGrath grew his shoulder-length hair in reliance on the dress code exception, but was later told he would have to cut it “in front of the entire senior class.” According to his mother, school officials said “they did not want to see a student like Charlie walk across the stage (at graduation); it’s not their image.” Charlie missed four days of school during a “conflict resolution process” and appeal to the local school board, but then cut his hair and returned because of a potential risk to his timely graduation.
While this story is yet another example of a school using its dress code to enforce certain norms, the linked article highlights difference between public charter schools and what it calls “traditional” public schools. The Colorado Safe Schools Act, in section 2(a)(J) requires a school district to establish a “dress code policy that prohibits students from wearing apparel that is deemed disruptive to the classroom environment or to the maintenance of a safe and orderly school. The dress code policy may require students to wear a school uniform or may establish minimum standards of dress.”
Charter schools that operate independently of “traditional” public schools can set their own, stricter dress codes. As reported, Stacy Rader, the Colorado League of Charter Schools spokeswoman, said “It could be argued that this is the beauty of school choice because families can select whichever public school – charter or traditional – that best fits their learning style and family priorities.”
The choice of a stricter dress code is, of course, only one small facet of the complex debate about school “choice.” It does, however, hint at the elitist, classist values behind some not-quite-public charter schools that want to portray a certain image of the modest and uniformed young man or woman. One supposes those who don’t fit the image can simply choose a “traditional” public school.
The India Supreme Court interpreted its constitution to provide equality and liberty rights to transgender persons including the right to be recognized as a “third gender” and be free from the gender binary – - – the case is National Legal Services v. India and there is a full discussion over on the Constitutional Law Professors Blog here.
The India Supreme Court noted that Article 19(1) of the Constitution of India “guarantees certain fundamental rights” including rights to speech and expression and that
Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.
The “balancing” in Article 19(2) allows “reasonable restrictions” “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”
Interestingly, the Court’s opinion references two US cases from state courts (both discussed in Dressing Constitutionally):
We may, in this connection, refer to few judgments of the US Supreme Courts on the rights of TG’s freedom of expression. The Supreme Court of the State of Illinois in the City of Chicago v. Wilson et al., 75 III.2d 525(1978) struck down the municipal law prohibiting cross-dressing, and held as follows “-
“the notion that the State can regulate one’s personal appearance, unconfined by any constitutional strictures whatsoever, is fundamentally inconsistent with “values of privacy, self-identity, autonomy and personal integrity that ….. the Constitution was designed to protect.”
In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.), the Superior Court of Massachusetts, upheld the right of a person to wear school dress that matches her gender identity as part of protected speech and expression and observed as follows :-
“by dressing in clothing and accessories traditionally associated with the female gender, she is expressing her identification with the gender. In addition, plaintiff’s ability to express herself and her gender identity through dress is important for her health and well- being. Therefore, plaintiff’s expression is not merely a personal preference but a necessary symbol of her identity.”
It then concluded:
Principles referred to above clearly indicate that the freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc.
The opinion could provide a broad basis for gendered and degendered clothing freedom and equality.
In the high-profile criminal trial of Cecily McMillan for assaulting a police officer, perhaps in connection with Occupy Wall Street, McMillan reportedly claims that a police officer grabbed her breast causing bruising. Given this claim, spectators in support of McMillan were reportedly “wearing a pink hand over their right breast” and instructed by the judge that they could not so during the trial.
The banning of spectator symbolic speech, such as a graphic symbol, by a judge raises the specter of a First Amendment claim. In some cases, this First Amendment claim must be weighed against a criminal defendant’s Sixth Amendment right to an “impartial jury.” As I explored in Dressing Constitutionally, one such case is Carey v. Musladin, in which spectators were wearing buttons with pictures of the victim. Although the 2006 opinion in Carey was procedural, Justice Souter concurring wrote to express his view that the First Amendment interests of the spectators was not “intuitively strong.” In a New York case, involving wearing corsages to support the victim, a trial judge stated that while free expression was at the “very core of our organized democratic society,” it had no place in the courtroom, a “holy shrine of impartiality” that was clearly committed to special and defined purposes and not the “airing of general grievances.”
Yet when the support is for the defendant and thus would not interfere with the defendant’s right to an impartial trial, the support for the banning of symbolic speech is shakier. One example is especially striking. In the high profile ‘Central Park Jogger’ criminal prosecution, the trial judge “barred a spectator-brother of one of defendants from wearing a black sweatshirt with the letters emblemized in white, ‘My Brother Antron McCray Is Innocent.’” As it turns out, that sweatshirt was right.
The better view is to allow a spectator’s First Amendment rights to symbolic expression when it does not impair the criminal defendant’s right to an impartial trial.
The Army passed controversial new rules for soldiers’ tattoos, hair, and grooming standards. The Army Times reports that the stricter guidelines are a response to the past decade’s crunch to get soldiers, allowing in persons with visible tattoos and other appearances that would otherwise offend the Army’s ideals of professionalism.
The current soldiers whose tattoos violate the new policy will be grandfather in, unless the tattoo is sexist, racist, or extremist. Not surprisingly, no definition of what a sexist, racist, or extremist tattoo is given, though Army Sargent Major Ray Chandler opined the majority of soldiers’ tattoos are not those.
The regulation also caused controversy over new guidelines for women’s hair, which many contend are racially biased against soldiers who are women of color. Publishing guidelines with pictures to clarify the policy, the regulation bans various twists, braids, and cornrows, and completely forbids dreadlocks, which Sargent Jasmine Jacobs of the Georgia National Guard says “offer little to no options for females with natural hair.” Finding other avenues to garner change unsuccessful, she started a White House petition that calls the policy “racially biased” and says “the lack of regard for ethnic hair is apparent.” She poignantly told reporters, “I’m disappointed to see the Army, rather than inform themselves on how black people wear their hair, they’ve white-washed it all.”
With similar sentiment, the Women of America’s Congressional Black Caucus (CBC) issued a letter to the Secretary of Defense. They called the changes “discriminatory rules targeting soldier who are women of color with little regard to what is needed to maintain their natural hair.” The letter adds, “the use of words like ‘unkempt’ and ‘matted’ when referring to traditional hairstyles worn by women of color are offensive and biased.”
With such strict rules for tattoos and racially charged hair policies, the new changes raise various First Amendment and equal protection considerations — however, any such challenge risks being unsuccessful because of strong deference to the Army. For example, the 1986 opinion in Goldman v. Weinberger, extensively discussed in Dressing Constitutionally, involved a soldier wearing a yarmulke and the Supreme Court deferred to the military prohibition. Congress later altered the law. Thus, pressure from the CBC and activism from within the ranks might prove more fruitful to changing the present benighted policy.
This one is from the Jefferson Davis Parish in Louisiana. Named after the President of the Confederacy, the parish has now reportedly adopted a municipal ordinance banning “saggy pants” including showing underwear. (The Jefferson Davis Parish municipal code is only current to December 2013).
There’s more on the unconstitutionality of criminalizing “saggy pants” in Dressing Constitutionally including cases in which courts have held such laws unconstitutional under the Fourteenth Amendment’s Due Process Clause and the First Amendment. In the same chapter, there is also an extensive discussion of prohibiting the wearing of the Confederate flag.
True story. Around these parts there is a wonderfully talented and very pretty female lawyer who is in her late twenties. She is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.
In a recent case involving this fine young lawyer every female law clerk in the building slipped in and out of the courtroom to observe her. I am not exaggerating. I later learned that word had gotten around about this lawyer’s dress. Acknowledging that the lawyer was really good, the consensus of the sisterhood was uniformly critical. “Unprofessional” was the word used most often. To a woman, the law clerks seethed and sneered. They were truly upset.
From the foregoing, and in my continuing effort to educate the bar, I have three rules that young women lawyers should follow when considering how to dress for court:
1. You can’t win. Men are both pigs and prudes. Get over it.
2. It is not about you. That goes double when you are appearing in front of a jury.
3. Think about the female law clerks. If they are likely to label you, like Jane Curtain, an ignorant slut behind your back, tone it down.
Judge Kopf is responding – at least in part - to a recent post on Salon.com, Amanda Hess, Female Lawyers Who Dress Too “Sexy” Are Apparently a “Huge Problem” in the Courtroom, Slate (March 21, 2014).
But it would seem that it’s Judge Kopf who is part of the “huge problem,” although note that he does try to shift some of the responsibility to women and the ways they police professional attire among themselves.
March 25 marks the anniversary of the tragedy.
Shirtwaists – - – women’s blouses worn over plain long skirts in a “Gibson Girl” look – - – were extraordinarily popular, fashionable, and viewed as both democratic and a symbol of women’s increasing equality. The system for manufacturing the blouses, as with other items of clothing, included tenement sweatshops in which workers were “sweated” by contractors, as well as loft factories in which long rows of sewing machines could be powered by a single motor. There were eight such rows on the ninth floor of the Triangle Shirtwaist Factory building when the fire broke out on the floor below, igniting discarded material and quickly spreading through the three floors of the factory. A combination of safety hazards contributed to the high death toll: crowded shop floor, lack of fire drill training, fire trucks in New York City that could only reach the seventh floor, rickety fire escapes, inoperable elevators, and doors locked from the outside. One hundred forty-six people, mostly young women, died. The Triangle Shirtwaist fire became emblematic not only because of the number of deaths, but because it was a very public event, with a number of women jumping from the flames to the street below during the fire, bodies lined up on the sidewalk for identification afterwards, and newspaper reports of skeletons bent over sewing machines. It prompted a large commemoration, an unsuccessful prosecution of the shirtwaist “kings,” and a state investigative commission that spearheaded a number of legislative reforms aimed at safety including a fifty-four hour working week for children, minors, and women.
There are numerous events commemorating the tragedy and the continuing struggle for the rights of garment workers and other workers.
The article is worth a read.
Although it’s not only law schools that concentrate on female attire, as the origins of “slutwalk” demonstrate; more discussion in Dressing Constitutionally.
In response to increasing complaints about dress- and appearance-based religious workplace discrimination, the Equal Employment Opportunity Commission has released new guidelines for employers to insure compliance with laws protecting religious garb and grooming. The guidelines include a question-and-answer sheet on rights and responsibilities and a fact sheet on the applicable law. As reported, EEOC spokesperson Justine Lisser attributed the new guidance to a “persistent uptick in religious discrimination charges” and said the EEOC is responding to religious groups, who “asked for more EEOC outreach in this area.”
Title VII of the Civil Rights Act of 1964 protects against discrimination based on religious dress and grooming. According to the EEOC press release, Title VII-covered employers “must make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.” Underlying this new discussion of existing protections and new guidelines is the fact that, according to the press release, complaints of religious discrimination have more than doubled since 1997.
We have reported on dress- and grooming-based job discrimination and policy changes over the past year (here concerning hijabs at work, here at the Pentagon, here on the costs of litigating these issues, and here concerning gendered hair policies) and more examples of religious discrimination are noted here. Constitutional protections for religious dress and grooming in a variety of settings are discussed in the Dressing Religiously chapter of Dressing Constitutionally.
The Seventh Circuit’s opinion in Hayden v. Greensburg Community School concluded it was unconstitutional for a school to require boys — and not girls — to have short hair to play on the basketball team.
As reported, Greensburg Community School allows a coach to decide a team’s hair policy. In the case challenged here, a coach had an unwritten rule that a student on the boys basketball team must have hair “cut above the ears, eyebrows, and collar.” This was to “promote team unity” and “project a ‘clean cut’ image.”
But one student cut his hair to play on the team and then “‘didn’t feel like himself’ with the short haircut,” so his parents challenged the policy in court. They argued that the short hair policy “arbitrarily intrudes upon their son’s liberty interest in choosing his own hair length, and thus violates his right to substantive due process, [and] because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination” in violation of the Equal Protection Clause and federal law.
The court denied the due process claim, rejecting “the notion that one’s hair length is an aspect of personal liberty so important that it constitutes a fundamental right.” On the sex discrimination claim, however, the Court found the policy unconstitutional. As discussed in Dressing Constitutionally, courts tend to give a weighty deference schools’ pedagogical interests when it comes to student dress codes. Nevertheless, in this case the Seventh Circuit required that the school provide an “exceedingly persuasive” justification for the explicitly gendered policy. Unconvinced by the school’s reasoning, the Court ultimately declared the policy unconstitutional “because the hair-length policy on its face treats boys and girls differently, and because the record tells us nothing about any comparable grooming standards applied to girls playing basketball.” The Court implied that the school could still ban “an Age-of-Aquarius, Tiny-Tim, hair-crawling-past-the-shoulders sort of hair style” for boys if it so wanted — in the meantime, the school cannot force all boys to have a crew cut.
Concurring and dissenting in part, one judge of the three judge panel disagreed with the finding that the school had no comparable standards for girls. He argued that the school showed a general hair policy applying to both boys and girls, banning things like mohawks and promoting professionalism — if the “policy applies to both men and women, the fact that it has different provisions based on different social norms or community standards for men and women (or based on different athletic traditions) is acceptable. Distinction is not discrimination.”
Indeed, both the majority and dissent suggest that a change in social norms of boy’s hair is determinative of whether the policy is valid, making a policy that might have been perfectly constitutional just ten years ago now unconstitutional solely because of a shift in cultural perceptions of acceptable gender presentation.
As discussed in Dressing Constitutionally, in earlier decades, the United States Supreme Court refused to grant certiorari in at least nine male hair length cases involving students, often over a dissent by the cantankerous and controversial Justice Douglas if the Circuit Court had found the school policy constitutional. It seems hair length for boys remains a constitutional issue.