California just became the first state to recognize by law that discrimination against natural hair can be discrimination on the basis of race. That was the result of years of advocacy. New York State just followed.
Some courts that considered the issue had decided that bias against natural hair was not the same as prejudice based on racial identity. The former was permissible even if the latter was prohibited. The dilemma is that race and hair do not correlate strictly. A person could change their hair.
For many African-Americans, though not necessarily with any awareness by others, maintaining natural hair protests the coercion of chemical straightening. That process of “relaxing” is anything but; it involves considerable danger. But there are bosses who have insisted, in turning away job applicants or ordering employees to alter their appearance, that hair discrimination does not constitute racial discrimination.
Their arbitrary exercise of power should be obvious. Social superiors set the aesthetic standards others are forced to meet. Blacks are supposed to imitate Whites, and natural hair is associated with dirtiness, lack of neatness, and, as explicitly as implicitly, unruliness. The line of thinking might not be expressed by those who would be embarrassed to have it exposed, but there is no other rationale: natural equals unkempt equals unprofessional. The same is true of bans on facial hair. There is disregard that for some men more than other men, especially with African ancestry, daily shaving presents health concerns such as razor bumps.
Although African-Americans are the primary targets of discrimination related to hair, the importance of grooming is apparent with others – for example, Orthodox Jewish men with sidelocks, Sikh men whose uncut hair is covered by a turban and, in the past, Chinese immigrants of the Qing dynasty who wore a queue (a pigtail). These practices are about religious faith and cultural traditions. They are not merely personal preferences to be dismissed as trivial. They are symbolic of membership within a community. They cause no damage to others. (Skinheads or those with White supremacist tattoos are signifying something else altogether, a threat to do harm.)
The role of academic activism should not be underestimated. Arguments must be made, based on theory and facts. There has to be an explanation, persuasive to legislatures and courts that may be skeptical or hostile, of why a bill should be passed or a decision handed down. There also has to be evidence documenting the problem and the likely effectiveness of the potential remedy. However compelling a grievance, those who protest unfairness will not prevail without legal reasoning.
The general understanding in the law has been abstract and formal. “Equal protection of the laws” has been defined as conformity. Persons are entitled to be treated the same as other people to the extent they are the same. A plaintiff claiming she faced unfairness will win if she is like a White male, and she risks losing otherwise.
