Woman Sues NYPD for “Topless” Arrest

 In a complaint filed in state court earlier this month, Krigsman v. City of New York, Jessica Krigsman seeks money damages for her unconstitutional arrest for not wearing a shirt in a public park in Brooklyn.  The complaint alleges that when the police officers approached Ms. Krigsman on the park bench and  told her to put on a shirt, she

“politely told the police officers that in 1992, in People v. Santorelli, 80 N.Y. 2d 875 (1992), the New York Court of Appeals held that it is legal for a woman to be topless in any public place in New York State where it is legal for a man to be topless.”


Statute of Athena

Apparently, the police officers did not credit Ms. Krigsman’s legal expertise, because they arrested her and took her to the precinct where she was held for approximately five hours and issued a summons for “Obstruction of a Sitting Area,” a charge that was dismissed when she appeared in court in October.

Certainly, Ms. Krigman’s lawsuit clears one of the hurdles that can make an award of damages for a constitutional violation difficult: the requirement that the law at the time of the incident be clearly settled.

As discussed in chapter 2 of Dressing Constitutionally, Santorelli involved activist Nikki Craft and other feminists, who had staged an action protesting topless laws as applied to women in a Rochester park; they were arrested for public nudity based upon exposure of their breasts.  A trial judge rejected their equal protection challenge, while dismissing the charges against them based upon a First Amendment analysis of their publicized protest in the park, but an appellate court reversed.  When the case reached New York’s highest court, the court’s succinct memorandum opinion neatly held that the statute was not intended to apply to the type of situation before it, but only “topless waitresses.”

It was concurring Judge Vito Titone who wrote the opinion that is best remembered.  He essentially accused his colleagues of historical inaccuracy, arguing that the “topless waitress” statute was a precursor statute and that the new provision under which Craft and others were convicted  “was aimed at filling a gap”  to clearly proscribe “nude sunbathing by ordinary citizens” and “either men or women appearing bottomless in public places”  Joined by one other judge, Titone’s opinion argued that the court should have taken the equal protection issue more seriously and suggested that any recognition of a governmental interest of protecting public sensibilities that are based on a gendered distinction is itself a constitutional problem.  For Titone, the “underlying legislative assumption that the sight of a female’s uncovered breast in a public place is offensive to the average person in a way that the sight of a male’s uncovered breast is not” is an assumption that replicated gender bias rather than confronting and eradicating sex inequality.  Titone’s concurring opinion stands as one of the most supportive judicial statements of the unconstitutionality of legally imposed gender differentials in required clothing.

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Headgear Hysteria

Here’s an Op-Ed from the National Law Journal:

High Fashion or Religious Fervor? Headwear Laws Fraught With Trouble

The distinction between faith-based garb and trendy styles isn’t always clear.

by Ruthann Robson
The National Law Journal
October 14, 2013

459px-Kate_Duchess_Cambridge_2012Passion about head coverings is not limited to intense interest in Kate Middleton’s latest hat or ­fascinator.

Retailer Abercrombie & Fitch, well known for its “look policies,” lost a court battle last month to prohibit its employees from wearing headscarves but won a different federal appeal earlier this month because a 17-year-old employee did not make explicit the religious motives for her scarf. And earlier this month, Turkey made news by further lifting its long-standing ban on headscarves, even while maintaining the prohibition for women judges, prosecutors and members of the military.

Police officers in the Bronx, N.Y., allegedly removed by force the headscarves of teenage girls playing in a park in late August. And last month in Mississippi, the American Civil Liberties Union sent a letter to the state Department of Transporta­tion alleging that employees had targeted a truck driver because he was wearing a turban. When the truck driver appeared in court on the charge for failure to obey an order, the judge reportedly had him ejected from the courtroom for his headdress and told his attorney that he needed to remove the “rag” from his head.

It isn’t only Muslims and Sikhs whose head coverings arouse consternation. In 1986, the U.S. Supreme Court considered the case of S. Simcha Goldman, an Air Force psychologist who had worn a yarmulke without incident for many years, despite a regulation prohibiting . . . . .
Read more on National Law Journal here.

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Weaves as Weapons: Texas Jail Removes All “Fake” Hair

A county jail in Texas recently made news when Gregg County Sheriff Maxey Cerliano commented publicly about the jail’s policy of “removing [inmates’] fake hair.” The jail requires “male and female inmates … to relinquish weaves, wigs and toupees” for reasons of “safety and security” and “the inmate’s personal hygiene.”  And Sheriff Cerliano estimates that they confiscate hair “pretty regularly” as the jail houses 11,000 people every year.

Per standard policy, an arrested person must turn over all personal property before she is placed in general population housing. At Gregg County Jail, a person’s property includes “artificial hair integrations.” When she is released, the jail will return her hair along with all her other property.


According to Sheriff Cerliano, an arrested person may remove her hair voluntarily, but Texas law gives staff the right to remove her hair for her, and even “the authority to cut [her] hair if [they] have to.” The Texas Administrative Code on Jail Standards states, “whenever clearly justified for health or sanitary reasons, the sheriff/operator may require a haircut” of the person.

In justifying the policy, Sheriff Cerliano told reporters that weaves specifically can be used as a weapon for someone to cause harm to herself or others. He also warns that hair can be used for storage and concealment of contraband. As discussed in Dressing Constitutionally, courts have often found this rationale convincing, but have also found that accommodations can be made for religious reasons or that the concerns have less force depending on the person’s gender.

The National Association for the Advancement of Colored People (NAACP) has received several anonymous complaints about the removal of hair at Gregg County Jail. But Sheriff Cerliano says the policy is applied “without regard to race or gender” — it “applies to male, female, white, black, Hispanic and any other national origin. It’s not about race.” Regardless of that statement, one might still wonder who is asked if her hair is fake, thus triggering the policy, and who is not asked. 

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Man with Dreadlocks Sues Government Employer over Gendered Hair Policy

Last month, Richard Williams filed suit against the Georgia Department of Corrections after he was fired for refusing to trim his hair.

As reported, Williams worked for the Department for over 10 years as corrections officer. During that time, he began to grow his hair longer, and for the last for 5 years the length of his hair went down his back.

According to Williams’s complaint, in June 2010, the Department Chief told Williams to “consider cutting [his] hair.” A month later, dreadlocksafter being asked again, Williams refused, saying “I do not plan to cut my hair and forcing me to do so would violate my indelible rights, religious beliefs and spiritual faith.” 

Then, in January of 2012, the Department passed a new policy stating, “males will not adorn dreadlocks or braids and hair shall not extend over the top of a shirt collar.” Two days later, Williams was told “to leave work, get a hair cut and return to work within two (2) hours.” He refused, and in February, the Department reduced his pay by 5% and required Williams to turn in all of his Department issued equipment. Williams then filed a claim with the Equal Employment Opportunity Commission (EEOC).

As discussed in the Dressing Religiously chapter of Dressing Constitutionally, incarcerated persons have successfully used religious arguments to challenge dress codes prohibiting dreadlocks, albeit with some difficulty. But in his EEOC filing, Williams alleges that he was discriminated against because of his race, sex, and in retaliation, rather than religion. He adds that “African American males as a class are adversely impacted by respondent’s Dress Code and Appearance Policies.” Shortly after the filing, Williams’s employment was terminated.

After reviewing Williams’s claim, the EEOC found that Title VII of the Civil Rights Act gives Williams a right to bring a civil action. Representing himself, Williams has filed a civil suit against the Department in federal court. And now, at the very least, the Department may have to justify why it forbids men and allows only women to have dreadlocks, braids, and longer hair styles in light of the equality claims asserted.  Although differences in men and women’s hair lengths have often been upheld, the rationales for such differences are more and more tenuous.

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Orthodox Store Owners v. NYC: The Continuing Dress Code Battle

As we previously discussed, the New York City Commission on Human Rights (CCHR) has filed complaints against seven Jewish Orthodox-owned stores in Williamsburg, Brooklyn, for their conservative dress codes — codes for patrons rather than employees. 

The stores – – – and the Orthodox Jewish Public Affairs Council – – – are fighting the cases not only in the administrative proceedings, but in the courts of public opinion.  Here’s one advert:

The stores’ argument is that lots of places have dress codes, including court rooms.  (This is certainly true; recall the Tennessee judge who ordered women to wear only long sleeve jackets this summer).   As for the NYCCHR, it argues that the gendered nature of the dress code – – – focusing on modesty rules for women – – – makes women, a protected class, feel unwelcome.

More on Gothamist here.

Again, this is definitely litigation to watch. 

Dallas Pride Parade Dress Code Enforcement Draws Debate

Cheering_(9178105985)Controversy ensued after organizers of the 30th Annual Alan Ross Texas Freedom Parade (“Dallas Pride”) announced a new effort to enforce state and city public nudity and lewdness laws at the parade. As reported, Michael Doughman, executive director of the Dallas Tavern Guild, organizers of the parade, said, “Just because it’s a day of celebration for our community doesn’t mean we are exempt from the law.” Doughman also reportedly said, referring to Dallas police, “[T]hey’ve looked the other way for years and years and years, but public lewdness and nudity in public [are] not going to continue to be tolerated.”

Dallas police officer and parade security co-commander Jeremy Liebbe reportedly described the effort as a “preventative measure” to address a “trend” in recent years of ignoring laws that had already been in place, but were apparently not rigorously enforced. As Liebbe explained, officers would review and warn marchers in the staging area prior to the parade, and those who had not complied before reaching the parade itself would be “removed from the parade and individuals may be charged with class-B misdemeanor indecent exposure.” If such indecent exposure were to occur in front of a child during the parade route, individuals may have committed felony indecency with a child, a third degree felony. See sections 21.08 and 21.11(a)(2)(A) of the Texas Penal Code. 

400px-Thai_Sunnyboy-Christopher_Street_Day-Berlin_2006While parade organizers and police have presented the new enforcement protocol as “preventative,” critics have charged that, in the words of activist Daniel Cates, “[the] ‘queer’ is effectively being erased from our pride celebration in favor of the most polished, heteronormative representation of our community possible.” According to this view, “family values” and corporate sponsorship have co-opted the meaning of the pride parade, covering its roots in sexual liberation with marriage equality, military service, and dress code enforcement. 

Controversy aside, Dallas Pride occurred with no reported dress code infringements and a large increase in attendance over the 2012 parade. Meanwhile, a man arrested at the 2011 San Diego pride parade has filed a complaint in the United States District Court for the Southern District of California against the City of San Diego, San Diego police officers, and San Diego Pride. He alleges, amongst other causes of action, violation of his 14th Amendment right to equal protection of the laws because of unequal and discriminatory enforcement. His issue? Walters was arrested for public nudity at the parade because of his outfit.

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“Pants-Only” Policy Upheld Against Free Exercise Claim in Retaliatory Termination Case

Can a public employer require a woman to wear pants, even against her religious beliefs?  In its brief opinion in Finnie v. Lee County, Mississippi, a panel of the Fifth Circuit left that question unanswered given the particular circumstances of the case.

After working for a Mississippi Sheriff’s Department for years, Ms. Crystal Finnie converted to the Pentecostal religion, which she told the court, meant she could no longer wear “‘clothing pertaining to a man’s garments,’ such as pants.” But her employer, the Sheriff’s Department, required pants as part of the uniform and told Ms. Finnie that she would have to “wear pants or resign.”IMG_8172_Edit__07235.1364412413.1280.1280

Shortly after filing a complaint with the Equal Employment Opportunity Commission (EEOC) and requesting a transfer to a clerical position where she could wear a skirt and keep her job, Ms. Finnie was fired.

She then filed suit. She argued that the policy violated her First Amendment right to exercise her religion, “constituted unlawful gender and religious discrimination under Title VII of the Civil Rights Act of 1964, and amounted to unlawful retaliation under Title VII.”

But the underlying question was whether Ms. Finnie was terminated as retaliation, and the Fifth Circuit panel held that she did not meet the burden to show she would not have been terminated “but for” her EEOC complaint.  Yet the opinion does not clarify whether her dismissal based upon her religious objection to the dress code would have been actionable.

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Ada Calhoun on the People Involved in Dressing Controversies

clothes racksIn her article, “Fashion police are no joke in some cities and schools,” over at Al Jazeera America, journalist Ada Calhoun explores the stories and people behind three controversies: sagging pants, Borgata “babes,” and students’ “I Heart Boobies” breast cancer awareness bracelets.

Ada Calhoun knows her clothes: She’s the co-author of the bestselling Tim Gunn’s Fashion Bible.  But she also knows that attire provokes strong responses from people.

Want to know what the major of Wildwood thinks about the ban on saggy pants?  Or what rapper The Game thinks?  Want to know what the attorney representing the cocktail servers at the Borgata casino thinks should be qualifications for the job rather than “dominatrix outfit” (hint: not spilling drinks might be important)?  Want to hear from the students who pressed for the right to wear the breast cancer awareness bracelets to school?

Take a look at Calhoun’s excellent reporting.

Florida Schools Ban Their Own Cheerleader Uniforms

At the end of last month, public schools in Pinellas County, Florida banned their own cheerleader uniforms in classrooms because the uniforms violate the schools’ new dress codes.

Screen Shot 2013-09-06 at 12.45.44 PMAs reported, the ban is part of a “broader crackdown” to enforce the dress code and administrators will no longer turn a “blind eye” towards the fact that the cheerleaders’ uniform, typically worn to class on game days, violates the dress code.

Questioning why the uniforms are “suddenly too vulgar,” many cheerleaders and their supporters have reacted strongly to the switch from short skirts to track pants. They question why too much teenage thigh and academics don’t mix for the school year of 2013, despite the uniform being classroom appropriate for years.

But the administration has been staunch in their position, with one principal telling reporters that, though the skirts may be appropriate during the game, “a school has another purpose, and that’s academics.” The pushers of the policy also say the ban promotes egalitarian skirt length among cheerleaders and non-cheerleaders.

For now, one school in the district found an obvious compromise: longer cheerleader skirts.

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Op-Ed in LA Times on School Dress Codes

Today’s LA Times includes my op-ed  “School Dress Codes: Miniskirt Madness” arguing that “School districts should focus more on educating students and less on enforcing seemingly arbitrary dress rules.”

Of course, it’s not just miniskirts.  After reading the op-ed for other examples, also look for our recent posts on leggings, a seven year old’s “dreadlocks,”  breast-cancer awareness braceletsmale cosmetics, the continuing controversy over confederate flags,  the Second Amendment,  and religious clothing, not to mention problems at graduation for students as well as parents.

And for even more, see Dressing Constitutionally.




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