The Blog

The Blog is now retired.

My posts after May 2014 on issues of “dressing constitutionally” can be found over at Constitutional Law Professors Blog and at the CUNY Academic Commons.

The posts from May 2013 – May 2014 remain available and searchable.

Parting shot

Cover of Puck magazine, 6 April 1901. “Columbia’s Easter bonnet / Ehrhart after sketch by Dalrymple.” via


#YesAllWomen: Dressing provocatively

The killer in a rampage near Santa Barbara, California left behind writings and videos expounding upon his hatred for women and his desire for retaliation.

Although the killer has been the subject of more than a few admiring posts, as part of the discussion of misogyny, the usual explanation seemed to be “not all men” are like him.  This was countered by a “yes all women” reply on twitter, the notion being that while not all men are guilty of misogyny, all women experience it.  The “Yes All Women” hashtag quickly gained prominence, with women providing experiences and observations, with some support and some criticism from tweets seemingly from men.

Perhaps not surprisingly, more than a few tweets describing women’s experiences focused on the same issues discussed in the “dressing provocatively” section of Dressing Constitutionality Here is a small sampling of the tweets:





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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Charter School Hair Norms

433px-Duerer01The 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.

[image via]

India Supreme Court Recognizes TG Constitutional Rights Including Dress

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.

Importantly, the India Supreme Court has something to say about constitutional protections for dress.405px-HijraPanscheelParkNewDelhiIndia

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.  

Sitting (Senior) Federal District Judge on the Dress of Women Attorneys

On his blog, Hercules and the Umpire, United States District Judge Richard George Kopf, writes:

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.

Robert_Collier_Vanity_Fair_19_February_1870The blog post is entitled “On being a dirty old man and how young women lawyers dress.” 

Judge Kopf is responding – at least in part –  to a recent post on, 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. 


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.

[image via 1 & 2]

Spokane Might Hold Vote on Public Nudity Ban

Citizens of Spokane, Washington, are gathering signatures for a proposed anti-nudity initiative. The initiative would create a misdemeanor, punishable by up to one year in prison, for exposure of “at least half of a female breast, any part of of a female areola or nipple, or any part of male or female genitals or anus at any place the public has a right to be or see.” The Spokane City Council rejected similar rules in October, leading supporters to seek voter approval through the initiative process.

SweetSpotCafeThe nudity ban movement reportedly arose as a result of “Topless Tuesday,” a promotion for local espresso chain “Devil’s Brew,” now known as “XXXtreme Espresso.” Workers at the event wore “G-strings and pasties” to serve coffee drinks to the public. The event caused concerned citizens to worry about Spokane’s family values. City Councilman Mike Fagan, sponsor of the failed October proposal, reportedly said, “If we’re going to promote Spokane based on family values, we’re going to let this continue?”

The initiative implicates more than the “family values” concern about what children might see in a public place, however. The proposed ban is overinclusive, if aimed at the larger issues of nudity or exploitation in marketing (see, for example, allegations of prostitution at a similar Washington State “bikini espresso stand”). The ban also criminalizes women who staff espresso stands. Stand owners, who presumably crafted these dress policies in a bid for increased profits, likely wouldn’t face misdemeanor charges under this proposal.

And the idea of people voting on the expressive rights of others is troubling. In Spokane, however, both sides of the issue agree that a public vote is best. As reported, ban opponents on the City Council are in favor of letting the public decide. And so is Sarah Birnel, owner of Devil’s Brew/XXXtreme Espresso, who told the council that “voters should set nudity standards.” Referring to the vote, she is quoted as saying: “As an American, this is what we should stand for.”

[image via]