Fundamental Rights or Hand-me-down Restrictions: the Specter of Sumptuary Law in Clothing Expression Doctrines of the U.k., the U.s., & Canada

• Publication year: 2021

Fundamental Rights or Hand-Me-Down Restrictions: The Specter of Sumptuary Law in Clothing Expression Doctrines of the U.K., the U.S., & Canada

Taran Harmon-Walker^*

Table of Contents

I. Clothing as Unique Expression....................................... 179

II. History of Laws Targeting Clothing.............................. 182

A. Sumptuary Law in the United Kingdom: Old Habits........183
B. Clothing Speech Rights in the United States of America: Enumerated Freedoms for Some.......................................184
C. Clothing Expression Rights in Canada: Global Considerations...................................................................187

III. Modern Clothing Expression Doctrines......................... 189

A. Clothing Expression Litigation in the U.K........................189

1. Broad Restrictions in Certain Settings........................191

a. In "Public"............................................................191
b. In "the Workplace"................................................192

2. Specific Restrictions on Disenfranchised Populations 192

B. Clothing Expression Litigation in the United States.........193

1. Broad Restrictions in Certain Settings........................193

a. In "Public"............................................................193
b. In "the Workplace"................................................196

2. Specific Restrictions on Disenfranchised Populations197

a. Inmates...................................................................197
b. Children.................................................................199

3. Restriction Through Adjudication...............................201

C. Clothing Expression Litigation in Canada........................203

1. Broad Restrictions in Certain Settings........................203

a. In "Public "............................................................203
b. In "the Workplace"................................................204

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c. Places with Alcohol................................................205

2. Specific Restrictions on Disenfranchised Populations 205
3. Restriction Through Adjudication...............................206

IV. Conclusion................................................................ 206

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I. Clothing as Unique Expression

"The items with which we cover our bodies and the ways in which we style them are physically located at the border—a manipulable border—between our bodies and the rest of the world."¹ All forms of expression, outside of government prescription, create or invoke tension between the liberty of a citizen and the autonomy of a government to maintain social order. But resolving that tension becomes more complicated when regulating dress. On one hand, international organizations such as the United Nations have declared that the wearing of clothes constitutes a human right.² In fact, even the most permissive countries consider dress a social and legal duty, requiring some degree of dress in public.³ On the other hand, despite the necessity of clothing, dress can also express a myriad of different messages. Explicitly, clothing can include written words conveying particular statements or even other forms of art.⁴ Implicitly, clothing—or lack thereof⁵ —can actively or passively signal personal identity,⁶ protest,⁷ or any of many other messages. Yet still, a wearer may not intend to convey any message by the clothing that they wear or may accidentally send a message they do not intend.⁸

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Despite Western⁹ states' reputations for protecting the individual liberties of its citizens¹⁰ —particularly that of expression—these states only indirectly acknowledge a legal right to expression through desired clothing. For example, since 2004, at least nine other countries and many cities in Europe banned the wearing of face coverings in public places,¹¹ and debate surrounding those laws focuses on the religious nature of face coverings rather than their donning as a purely expressive act.¹² International charters vaguely mention "expression" but fail to define it.¹³ Further, universal standards call for places of employment to insist on grooming policies, where violations can result in termination.¹⁴ In the public sphere, most countries limit freedom of expression when such freedom interferes with sufficiently strong government interests, such as preventing breaches of the peace.¹⁵ Perhaps surprisingly, both ideological wings of the popular political spectrum in representative governments support such restrictions.¹⁶

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And despite the encroachment of non-conformist millennials on entrenched political power,¹⁷ recently governments have enacted new and highly publicized legal restrictions of certain forms and choices of dress in recent years.¹⁸

Yet nothing about such restrictions surprise us, despite the decades-long rise in cries for protection of the freedom of speech. Governments have controlled bodies and body coverings for at least thousands of years. "Sumptuary laws," which codify how individuals of different social classes and roles may dress in various dimensions, hallmarked legal systems from 215 B.C. until only the last few centuries.¹⁹ As of 2020, sumptuary laws are much harder to identify and much more readily justified by concerns other than maintenance of class structures. Yet laws targeting the specific clothing habits of disenfranchised minorities evidence that modern clothing expression restrictions approximate the effects of long-established class-based legal repression.²⁰

This Note will explore the legal doctrines restricting and protecting clothing expression rights in the United Kingdom and two of its former colonies, the United States of America and Canada. It seeks to identify how countries that are historically linked by a suppressive sumptuary code treat modern expression through clothing. Analyzing jurisprudence specific to clothing expression helps to tease out an expressive right that closely cleaves to body autonomy and can highlight sumptuary-style justifications that are inconsistent with modern sensibilities. As the only form of expression universally considered a human need,²¹

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clothing expression deserves more than simplistic, abstracted, or secondary status in legal discussions on fundamental rights.

Section II of this Note assesses the historical background of clothing expression rights in each country of this review in turn, starting with the oldest (the United Kingdom) and ending with the youngest (Canada). Section III focuses on the legal doctrines of each nation, first providing the context for clothing expression litigation in the country, both the relevant historical background and modern developments. Each subsection of Section III will examine major clothing expression litigation in up to three procedural forms: broad restrictions in certain settings, specific restrictions on disenfranchised populations, and restrictions through individual adjudications. Section IV then offers conclusions of the distinctive characteristics of each nation's free expression jurisprudence.

Ultimately, the United States offers a relatively unclear and dispersed protection of clothing expression. Because of its strong common law tradition and federalist ideals, each state's judicial bodies and local governments enjoy significant discretion to cling to sumptuary ideals. In contrast, the U.K. utilizes uniform and strong nation-wide protections for traditional forms of clothing expression. The U.K. appears to protect the wearing of clothing until the murky subject of "offense" may invoke an ancient, potentially classist response. Canada provides the clearest example of strong clothing expression protection jurisprudence, eschewing tradition for "reasonableness."

II. History of Laws Targeting Clothing

For millennia, humans maintained laws strictly limiting what different citizens and non-citizens could wear.²² These are the most visible form of sumptuary codes, systems of restrictions on personal expression ranging in seriousness and invasiveness across history.²³ While several academic lenses help explain the

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impact of sumptuary codes throughout history, academia rarely debates that sumptuary codes were a tool used to enforce and perpetuate classism in many classical societies.²⁴

A. Sumptuary Law in the United Kingdom: Old Habits

The term "sumptuary law" originally comes from medieval England. Medieval English governments used laws targeting "sumptuousness," i.e. luxury,²⁵ to theoretically prevent sin and over-consumption that they deemed a detriment of society, and to actually control spending.²⁶ While the laws targeted all forms of social habits and behavior, laws restricting clothing were constantly visible and may seem absurd by modern standards.²⁷ Nonetheless, the history of such restrictions is long and explicitly classist. For a stark example, the only law passed by English Parliament in the year 1337 banned the wearing of fur and imported cloth, but excepted persons of lord-status or higher to wear fur and "the King, Queen, and their Children" to wear imported cloth.²⁸

Through the next three centuries, prohibitions and restrictions in England only increased in number and degree. Lower-class persons were required to wear badges or even brands to denote their class rank, all with the stated justification of preventing poverty and crime.²⁹ In contrast to higher modern scrutiny on the dress of women, English sumptuary codes at that time more exhaustively restricted clothing for men than for women.³⁰ In addition, U.K. sumptuary laws

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occasionally addressed sexuality, in explicit provisions for ignoble males and female sex workers.³¹

B. Clothing Speech Rights in the United States of America: Enumerated Freedoms for Some

The U.K. and the United States legally separated centuries ago, and while the two share a language and some cultural norms, the United States has faced its own unique...