Should Natural Hair Be Considered An Immutable Trait Under the Equal Protection Clause?

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Hey Everyone,

Have you ever experienced some form of discrimination as it relates to your hair? Has anyone ever made comments such as ‘your hair doesn’t meet our company’s grooming policy’ or ‘we don’t allow braids within this establishment’? What about one of these three: ‘we want to offer you the job but you’ll need to cut off your locs’, ‘remove your twists’, or ‘sleek down your hair because it’s a distraction. Sadly enough, adults, even children, experienced and continue to experience these types of comments, social preferences, and biases.

So the question of ‘Should Natural Hair Be Considered An Immutable Trait’, is something that we have considered without even realizing. Bills such as the Crown Act (Create a Respectable and Open World for Natural Hair) passed by the House within states like New York, California, and New Jersey and are now waiting on Senate approval. In addition to the fact that the idea of beauty and the acceptance of natural hair shifted to the point where we now have forms of representation in media like Tiffany Haadish, Issa Rae, Jenelle Monae, Jill Scott, Uzo Aduba, etc. This question has now become more prevalent and required than ever before. The reasoning being is because we’re fighting to implement laws that create an equally aesthetic atmosphere for all hair types. As a result, we need to consider the following two items.

1. As these laws pass, will there be a need to amend the 14th amendment equal protection clause to include hair discrimination as a subset of racial discrimination?

2. Who will be implementing these laws within public and private spaces?

So as we take a break from the traditional informational posts to once again return to talk about hair experiences. The question ‘Should Natural Hair Be Considered An Immutable Trait’ will be part 1 of our 6 part series, called Hair As A Sociological and Political Statement.

What Is Immutability and How Is This Even Related To the 14th Amendment

Immutability is broken down into two segments. There’s Old Immutability vs. New Immutability and these ideals basically refer to traits that are central to a person’s identity. Immutability also refers to a person having or receiving characteristics that are beyond their control and can not be changed. These traits are considered to be an accident of life as referred to by the courts and are meant to be interpreted as a basis for laws against discrimination of one’s group under the 14th amendment. Hence why this question is so important.

How Does Hair Apply to Immutability

As race is viewed as an immutable trait, hair is most definitely a subset of race, and here’s why. The various hair textures that we have within our communities are distinctive based on what we identify ourselves as racially and ethnically. For example, someone who is predominately of African descent would typically have curlier hair than someone of predominately Asian descent. Now depending on how mixed you are ethnically and racially, meaning your percentage of Whiteness, Pacific Islander-ness, or Blackness, etc. This will affect the coarseness of your hair texture. However, when we look at cases of hair discrimination, it’s generally towards those who have ancestrally identified themselves as Afro-Latina or African American. When we look at cases like Chastity Jones who faced job discrimination as a result of her locs, then filed a claim with the courts, only to receive a dismissal. Then you have cases like Deana Cook who faced detention as a result of her braids not fitting her school’s grooming policy, or Andrew Johnson, an African American wrestler who was made to cut off his locs in order to compete in wrestling competition. In addition to DeAndre Arnolds and Kaden Bradfords were suspended from school just last year as a result of their dreadlocks becoming too long, and not conforming to the school’s grooming policy. The list of cases can go on and on.

You then begin to realize that there are multiple similarities here that play a factor in why hair discrimination can definitely fall under the race category. All of the individuals mentioned categorize themselves as African American. The hairstyles that they were made to remove or reprimanded for can be seen as social signifiers [i.e cultural attire, hairstyles, and aesthetic] within the African American community. The reason being is because prior to slavery, women and men within Africa would style their hair in cornrows, braids, bantu knots [ originally known as Zulu Knots], locs , and two-strand twists. These styles were seen as indicators of status, spiritual significance, wealth, clan/ tribal affiliations and so much more. However, when we look at the history of hair pre and post-slavery, we notice that hair and race become interchangeable and are not seen as separate distinguishable traits.

How Do Race and Ethnicity Come Into Play

Europeans during colonialism used shaving African men and women hair as a method of stripping them down, of their pride, culture, and identity. Furthermore by having laws passed such as the “Tignon Law of 1786”, banning African American women from wearing their hair in public spaces in States like Louisiana. In order to stop Creole women [people of African, Native American, or South Asian descent] who could pass for white from moving up the social ladder. To the ideals presented during slavery and post-slavery of blackness and coarse hair being socially and politically unacceptable. Having slaves who worked in the house being required to have their hair groomed as “neat and polished to match European ideals of beauty. Which then allowed for the introduction of “good vs. bad hair” within the African American community.

[This generally referred to those of mixed race, who identified as bi-racial [i.e mulatto] or tend to have lighter skin, looser curls, that would be looked at as house slaves as the individuals who would fall into the category of good hair. This is because their hair texture was closer to European standards. However, those who were darker-skinned, with tighter coils, “kinky hair”/ “matted hair” and seen as field slaves would be the individuals whose hair type would fall under the category of bad hair because it did not closely resemble European standards of beauty.]

You realize these tactics/ ideals that were implemented within colonial society and post-slavery allowed for Natural Hair within certain racial/ ethnic groups to be seen as inferior, undesirable, and socially unacceptable. Thus creating a space where the standard of beauty must resemble whiteness as closely as possible. This then created a generational curse as it relates to how natural hair should be presented in public and private spaces.

How Will These Rules Come About and Who Will Implement These Rules

If we fast forward to today, we realize that the “good vs. bad hair concept” is still being used within the natural hair community. The ideals pre-constructed during slavery for how slaves should maintain their hair is still being used as a basis for private and public entities to structure their grooming policies. For example, many companies still use keywords such as neat, nice, and polished when structuring their company’s policy. However, these words are open-ended and subject to interpretation. Therefore, passing laws to change the meaning behind those keywords and creating a space where the representation of natural hairstyles and textures are not only present within media but within schools and corporate America will allow for these types of policies to become un-bias.

To conclude, society has always seen hair as a subset of race because if you look at laws/ ideals that were implemented to create inferiority between certain racial/ethnic groups. You realize that society used beauty as its method of ensuring that such groups remained an inferior class. As we fast forward to today, we are now starting to breakdown and recognize the implicit biases that many companies have as it relates to their ideal of what type of hair or look is acceptable for their brand. With representatives like Stacy Abram, Anglea Bassett, Lori Lightfoot, Yara Shahidi, India Arie and so much more wearing their hair natural. We are now seeing a shift in beauty and the types of hairstyles that are deemed to be sociologically and politically acceptable. However the change is still not complete and there is still more work that needs to be done, in order for us to have a more openly aesthetic society. I believe that getting acts like the CROWN ACT passed is a start but I also believe that adding hair as a subset of race within the 14th amendment’s equal protection clause will also help to relieve some of the tension amongst this issue.

As this is a heavy topic and we are launching our podcast called Honestly Naturale very soon. We’ve decided to have this conversation as part of Episode 1 and would love it if you could comment and join us. Feel to leave a comment to let us know if you would prefer to have this conversation as a live discussion and your thoughts on this post. Also, don’t forget to subscribe to this page and follow us on all social media. The links to our social media pages can be found at the top of the page.

Plus stay tuned for our next post, which will focus on cultural appropriation as it relates to hair and if we can really tell if shift in ones culture can be looked at as becoming mainstream or if the shift is really cultural appropriation.

Should Natural Hair Be Considered An Immutable Trait Under the Equal Protection Clause?