House Bill Seeks to Regulate Photoshopped Advertisements

Two House Representatives have introduced a bill to regulate the use of photoshop in advertising. Garnering applause from gender justice advocates, H.R. 4341: Truth in Advertising Act of 2014 would require the Federal Trade Commission (FTC) to report to Congress a strategy reducing images in media and advertising that alter a person’s face or body’s physical characteristics.


Several groups set out on the Hill to raise support for the bill. One supporter told reporters that “if photoshopped ads told the same bold-faced lies that they do on images, there would be regulatory action.” But many are not concerned with the misleading nature of the ads — rather, as The Eating Disorders Coalition sees the bill, it is a way to prevent the “negative health outcomes that have been directly linked to these types of images.” Co-sponsoring the bill, Rep. Ileana Ros-Lehtinen, a Republican from Florida, told reporters “the link between false ads and eating disorders becomes increasingly clear every day.”

But the bill is not without opponents. The Association of National Advertisers told Time the bill is “too broad” and goes “too far,” noting that the FTC already has the power to regulate “unfair and deceptive ads.” Enforcement of any such photoshop regulation would raise 1st Amendment considerations, and there is question on how much photoshopping would be too much. One commentator opined that Justice Stewart’s well-known obscenity quote, “I know it when I see it,” would become apt precedent. But unfortunately, the challenges will likely never be made — the bill has a 1% chance of successful passage. Even with such a low likelihood of passage, the bill is seen by many as a success for raising the critique and amassing awareness of the issue.

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Army Causes Controversy with New Tattoo and Hair Policies

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 amanda-west-army-pin-up-girl-tattoothe 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.”

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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.

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Seventh Circuit Strikes Down Basketball Team’s Short Hair for Boys Policy

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.

KONICA MINOLTA DIGITAL CAMERAAs 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 Towson_HS_Basketball_1963and 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.

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Incarcerated Native Americans Challenge Alabama DOC’s No Long Hair Policy

In its opinion in Knight v. Thompson, the Eleventh Circuit upheld an Alabama Department of Corrections (DOC) policy that bans long hair for incarcerated men. A group of Native Americans initially challenged the policy in 1993, alleging it unlawfully burdens their religious tenet to wear unshorn hair. Over the last two decades, the case has worked its way to the Supreme Court with the group now petitioning the Court to hear their appeal.


In total, Alabama prisons and jails house approximately 200 persons who practice the Native American faith of which having long hair is a fundamental belief. Despite numerous requests, the DOC has not given incarcerated Native Americans a religious exemption from the ‘no long hair’ policy. Thus, the group claims the policy is unlawful under Religious Land Use and Institutionalized Persons Act (RLUIPA).

RLUIPA allows a policy to infringe on incarcerated persons’ beliefs if the policy furthers a compelling interest and is the least restrictive means to achieve that interest.  So, in defense of the policy, the DOC argues that safety concerns require the long hair ban — incarcerated persons could hide contraband in their hair or grab the hair during fights — and that long hair encourages gangs, undermines order and control, and raises hygiene issues. The challengers, however, argue that a total ban is not the least restrictive means to achieve safety and order — after all, Alabama’s women’s prisons allow long hair and over 38 men’s prisons in the U.S. do as well. But the lower court found that incarcerated women pose “less risk of violence and escape” than men based on warden testimony, and the circuit court also found that other prisons allowing long hair does not necessitate Alabama to do the same. Ultimately, the court denied the Native Americans’ claim, saying RLUIPA “does not give courts carte blanche to second-guess” prison officials.

The challengers also put forward a slew of Constitutional arguments — they claim the policy violates their 1st Amendments rights to free exercise of religion and freedom of association, and the right to due process and equal protection, among others. The court addressed only the equal protection claim, saying the remaining claims were not properly raised. And the court again upheld the policy, rejecting the equal protection challenge: given the finding that women pose less of a safety concern than men, it is not arbitrary or unreasonable to allow incarcerated women long hair but not men.

img_1275As discussed in Dressing Constitutionally, dubious rationales rooted in anecdotal evidence and broad generalizations are typically sufficient to justify a prison’s policy that treats groups differently. Indeed, despite lack of evidence or a challenger’s showing to the contrary, courts give a hefty deference to prison officials because of the weight given to safety concerns. 

In response to the loss in the circuit, a member of the Native American petitioners told reporters, “I wish the courts could see or feel how something as simple as a lock of hair can mean.” Perhaps if confronted with the full meaning and the right (or lack thereof) at issue for an incarcerated person, the court might not be so quick to uphold a prison policy without a more rigorous showing of substantiated facts — adequately justifying why a prison finds it necessary to control a person’s physical appearance and thwart his personal, religious, or spiritual expression.

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New Jersey Employer Orders Woman to Remove Hijab

Last month, the Council on American-Islamic Relations New Jersey (CAIR-NJ) filed a complaint with the Equal Employment Opportunity Commission (EEOC) on behalf of a woman whose employer ordered her to remove her hijab, causing her to lose her job.  

According to reports, the complaint alleges that Ms. Naima Mnasri “ was ordered to remove her hijab at her second day of work” when she was waiting to start her shift at a factory that manufactures plastic bottles. Supervisors told her that she needed to remove her head scarf for “safety reasons” and that “no religious symbols were permitted at the factory.” When asked by reporters if she felt her hijab was a potential “safety hazard,” Ms. Mnasri said “absolutely not.” Removing the hijab would violate Ms. Mnasri’s religious beliefs, so she had to leave her job.

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Filing a complaint with the EEOC on her behalf, CAIR-NY is a civil rights organization that frequently advocates for Islamic civil liberties in the U.S. Their complaint alleges that the supervisor’s order violated state and constitutional law. It states that the ban of religious symbols “directly violates the U.S. Constitution and the very foundations the country was built upon.”

Ms. Mnasri recounted the incident for reporters:

“It’s upsetting.  I was upset.  I know I live in this country.  The constitution protects my rights.  I even told him that I have rights in this country and I’m going to pursue my rights … He said, ‘ma’am either you take that off, meaning the hijab, or you go home.’ I told him it’s part of my religion. I cannot take it off.”

Professor Ruthann Robson has previously discussed this kind of “Hijab Hysteria” last year, saying that an employer need not claim safety reasons in order to bar hijabs from the workplace. Instead, as the Tenth Circuit suggested in 2013, the burden is on the woman to explicitly inform her employer that she wears the hijab for religious reasons and request accommodation.

But Professor Robson suggests that rather than focus on the reasons why a woman chooses to wear a hijab, religious or secular, “we should be more worried about the beliefs and biases of those who seek to control women’s attire, whether they are focused on headscarves or something else.”

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Pentagon Changes Dress Code Policy for Religious Accomodation

Earlier this month, the Pentagon announced it is relaxing dress code rules for religious accommodations. As reported, on a case by case basis, the new policy allows troops to wear religious clothing and other forms of outward expression when they are approved by higher-ups.

398px-Zalman_LipskierWith the relaxed policy, service persons can now wear hairstyles, beards, piercings, or even tattoos that would otherwise be barred. The policy was adapted “to promote the climate necessary to maintain good order and discipline [and] reduce both the instances and perception of discrimination among those whose religious expressions are less familiar to the command.”

But not all accommodations will be made — commanders will deny a request if it has an “adverse effect on military readiness, mission accomplishment, unit cohesion, and good order and discipline.” As the Pentagon explained, “religious apparel that ‘impairs’ the safe operation of weapons, poses a safety hazard to others, or interferes with special equipment like helmets and flak jackets will not be permitted.”

388px-CaptRattansikhThe policy is not limited to any particular organized or recognized religions. NBC News reports that “the military will make every effort to accommodate ‘individual expressions of sincerely held beliefs’ (conscience, moral principles, or religious beliefs) of service members.” Indeed, in speaking to the press, the Pentagon stated that they place “a high value on the rights of members of the Military Services to observe the tenets of their respective religions and the rights of others to their own religious beliefs, including the right to hold no beliefs.”  

Reporters speculate that the policy change came in response to Sikh soldiers’ complaints over discrimination through dress.When it comes to the Constitution, the military receives special legal considerations for curbing traditional notions of free speech and exercise of religion, and challenges to policies are often difficult, if not impossible, to make. The military has also traditionally championed oneness and uniformity as ideal. As a result, many welcome the move as enhancing fundamental rights that would otherwise be difficult to uphold in the military context.  

However, Americans United, a group dedicated to the Constitution’s mandate of separation of church and state, issued a more cautious response, saying:

“Americans United fully appreciates the need and value of religious accommodations in the Armed Services. Yet, even as we support religious accommodations, we recognize the equally important and coextensive need to ensure that service members are not subject to coercive religious practices or unwanted proselytizing. Religious freedom means both the right to practice religion and the right to be free from government endorsement and coercion.”

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Brooklyn Principal “Chastises” Parents for Exemptions from School Dress Code

As reported, Principal Lorenzo Chambers of Brooklyn’s P.S. 279 sent a letter to parents in which he questioned their alleged religious motives for opting their children out of the school’s dress code.

16990In New York City, a public school can voluntarily adopt a mandatory uniforms for their pupils. At Brooklyn’s P.S. 279, the required uniform consists of polos and blue khaki pants, but students may be exempt from the mandatory dress code for several recognized reasons, including religious. New York City law provides that “students have a right to … determine their own dress within the parameters of the Department of Education policy on school uniforms and consistent with religious expression.” To avoid disciplinary action, parents have 30 days to apply for the exemption, and students can face suspension and other punitive measures for violating the uniform requirement.

According to the letter sent to parents last month, Principal Chambers became alarmed by parents claiming religious exemptions for their children after he deduced parents were falsely invoking religious expression claims “when clearly there are no such reasons.” He concluded this “because some of [the] children wore their uniforms last year and not this year.”

He added, “school is about learning, not about what we look like and asserting one’s individuality through what he/she wears,” and that “children should assert their individuality by who they are as a person — how hard they work or how kind they are to their peers or how respectful they are to adults.”

However, Chambers may be overlooking the real reason behind the alleged false exemptions — rather than parental concern over a child’s self-expression, parents may seek exemption from the mandatory uniform because, simply, uniforms are expensive.

Screen Shot 2014-01-21 at 6.12.43 PMIndeed, one P.S. 279 mother told reporters that she needed a month to save the money just to buy the uniform. “If you go to school without the uniform, they make you change and put one on … It’s not good sometimes if you don’t have enough money. It’s $15 for pants and $7 for a shirt. It adds up.” The uniform can be purchased online at

While for some “it’s just a uniform,” for others who struggle to make ends meet, it can be a very serious expense with drastic consequences. And though the Constitution’s right to freedom of religion may afford a student exemption from the mandatory dress codes, unfortunately for many New York City families, economic hardship is not also protected in this way.

As far as the administration goes, the school might be better served if there were first inquiry into the reasons for claimed religious exemptions, rather than accusations of lying and telling parents they do a “‘disservice” to the community by opting out of purchasing uniforms. Indeed, given the outspoken critics of Principal Chamber’s letter, attempting to ameliorate the need for exemptions, rather than chastising parents, might just be a better strategy all around.  

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Update on NYC Suit Against Jewish Orthodox-owned Stores for Alleged Discrimination

As previously discussed on Dressing Constitutionally, the New York City Commission on Human Rights recently filed complaints against seven Jewish Orthodox-owned stores that allegedly violated City law by discriminating against the “gender and creed” of patrons through the stores’ dress code.

This Tuesday, The New York Times reports the City’s action against the stores is settled, requiring the Brooklyn-based stores to pay nothing. Though the Commission’s originally sought fines against the stores, the 800px-Satmar_community_Williamsburg_brooklyn_new_yorkCommission is now “satisfied that the store owners understand their obligations under NYC Human Rights Law.” The Commissioner also assured reporters that if the stores “were to post new signs in their windows, they would say that while modest dress is appreciated, all individuals are welcome to enter the stores free from discrimination.”

The attorney representing the stores pro bono told the Times, “it’s inconceivable that it could be a human rights violation for Hasidic Jews to make the same statement that stores and restaurants all over the city make,” referring to the various gendered dress codes across New York City which result in blatant discrimination similar to that alleged against the Williamsburg stores. 

Asked about the settlement, newly elected New York City Mayor Bill de Blasio did not initially comment because he was not aware of the issue. As Yeshiva World News reports though, the Mayor eventually told reporters, “we want to respect every community in everything we do” but adding “we also have laws that we are here to uphold.”

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A School’s Suspension over Dress Code Violation Sends “Mixed Messages” to Transgender Teen

Last week, high school administrators suspended a transgender student, Staceyy Holidayy, for wearing a shirt that violates the girls dress code, despite allegedly forbidding her from also using facilities designated for female students.

As reported, Staceyy purposely violated the dress code by wearing a backless top to bring attention to the administration’s inconsistent treatment of her gender identity. She told reporters, “I don’t know how they can suspend me because I broke rules for girls when I can’t use the girls restroom or locker room.”

The administration disputes Staceyy’s claims, telling reporters it was agreed that Staceyy would use the nurses office for the restroom and changing. They thought it would be “safer” for her to do so rather than use the regular facilities.

6a00d8341c730253ef01a3fc4fe450970b-250wiThe administration also assured reporters that it adheres to California’s legal requirements in place to protect transgender students. However, Staceyy alleges that she was not given a choice in the matter. Thus, the arrangement may violate the law’s requirement that a student “be permitted to … use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

Signed into California law just last August, the School Success and Opportunity Act, or AB1266, requires a school to allow a student choice in gendered assignments like restrooms, classes, and sports teams. Despite the need to protect LGBTQ youth from institutionalized bullying, the law is under threat as anti-LGBTQ groups successfully organize for its repeal.

For transgender students, ascertaining equal protection and relief via constitutional means is not a guarantee and indeed, such avenues can take years and can be immensely expensive. With affirmative legislation like California’s law, however, a student may be afforded protection and more effective means for recourse. Indeed, in Staceyy’s case, the administration is quick to discuss its compliance with AB1266 in its accommodations for Staceyy.

As far as the suspension goes, however, AB1266 has little to say. Some commentators have lauded the administration’s recognition of Staceyy’s gender by enforcing the girls’ dress code against her (though one wonders whether it is generally so strictly enforced). But regardless of gender identity, the fact that any student is suspended for two days over an arbitrary dress code violation leaves little room for applause.  

[image of student courtesy Towelroad via]

ACLU Accuses Retailer of Racial Profiling in Anti-Shoplifting Policy

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,hot-mama-inside

“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.

[image via 1 and 2]