Afro-Hair and the Law: The State of American and Canadian Law on Race-Based Hair Discrimination  

Contributed by Annaëlle Barreau

Introduction

Anti-Black hair sentiment in North America is a century old tribulation. A survey conducted by DOVE and the CROWN coalition found that 86% of children have experienced race-based hair discrimination by the age of 12. The discourse revolving Black hair is politicized and goes beyond a mere discussion of beauty standards, since Black people are denied educational and employment opportunities simply because of their hair. There are societal pressures in multiple spheres for Black women and girls to either cut or chemically alter their hair to fit in. The discrimination resulting from keeping one’s natural hair texture is a civil right and a public health issue and ought to be addressed as such. 

Some lawmakers have affirmed that while hair texture is an immutable characteristic, hairstyles, such as twists are not, and should thus not be granted protection. This argument is true only when one refuses to properly educate themselves on Afro hair care. Discriminating against protective hairstyling in educational facilities and the workplace forces many Black women and girls to alter their har in damaging ways to meet European aesthetic standards or overmanipulate their hair.

Studies show that there are disparities in the impact of hairstyling choices between Black individuals and their white counterparts. For instance, for the sake of infection control, white nurses are asked to tie their hair up, whereas Black nurses are often asked to cut theirs.

In Canada, there is stigma and misconceptions surrounding afro-texture hair. Beauty schools do not include afro-texture hair in their curriculum and there is a lack of positive representation in the mainstream media. Although there has been  outpouring public response, with a petition gathering 30,000 signatures to give afro hair a place in beauty-school programs, no official change has been implemented. 

The jurisprudence and mediatization of race-based hair discrimination in Canada is not as developed as it is in the United States, however, it is just as present. This blog article will discuss the history of race-based hair discrimination in America, the new American legislation aiming to combat the issue, and how this discrimination has been addressed in Canada. 

History of race-based hair discrimination

In the 1700s, in Colonial Louisiana, there was an established community of free Black people. Black women were known to style their hair elaborately, which drew the attention of white men. This attraction instilled jealousy and fear that the Black community would gain too much power. Further, white women claimed that Black women were intentionally scheming to tempt their white husbands. As a result, when the Spanish took over Louisiana, they implemented the Tignon Laws, by which Black women were forced to conceal their hair with a tignon (a head scarf typically worn by enslaved women while labouring). The law’s purpose was twofold: it was an additional visual social marker, reasserting that free Black women were closer to enslaved women than to white women and supposedly prevented them from enticing white men. Black and Creole women however, seized this opportunity to create a new cultural element by crafting colourful and ornated headwraps. By the early 1800s, while the Tignon Laws were no longer being enforced, race-based hair discrimination still persisted.  

Madame CJ Walker, whose empire was launched by inventing the hair-straightening comb and other hair products, became the first Black female millionaire towards the end of the 19th century. Straight hair was seen as leading to social and economic advancement. Minstrel shows would mock kinky hair texture, referring to it as nappy and comparing it to wool

Afro hair, is often seen as deviant compared to the narrow Eurocentric beauty standard. There is a strong pressure for Black women and girls to cover, strengthen, or chemically alter (“relax”) their afro-textured hair in order to be accepted in society. However,  many of these practices come at a high monetary and physical cost. Through hair relaxers, racism and toxins collide, with a number of dangerous chemicals being found in a number of  relaxers, which can lead to chemical burns. “Hair products sometimes used by Black women may contain endocrine-disrupting chemicals linked with serious health issues, according to Harvard T.H. Chan School of Public Health’s Tamarra James-Todd. […] Straight long hair has often been held up as the standard of beauty […] To try to adhere to that standard of beauty [… ] some Black women use a there is a limited selection of chemical-free products for Black hair on the market, and where they do exist they are often not widely available and can be expensive.” 

Today, there is a dichotomous status accorded to Black hairstyles in mainstream society, where they are considered fashionable on one hand, being emulated by non-Black people, while being considered unprofessional on the other, resulting in many Black people, especially women and girls being denied access to education and employment opportunities because of their natural hair. In fact, Black girls and women are routinely sent home or denied employment due to their hair being perceived as “unprofessional”.  

Natural Black hair in the workplace is a civil rights and public health issue that is now being fought with legislation.

The CROWN Act,  which seeks to end race-based hair discrimination, expanded the definition of race in the State Education Code and the Fair Employment and Housing Act; finally legitimizing the demands of generations of Black women. || (Photo Source: Naassom Azevedo via Pixabay)

The Crown Act

On 3rd July 2019, Governor Gavin Newsom signed the Senate Bill 188, also known as the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), making California the first state to legally protect Black students and employees from hair discrimination. Nine days later, New York became the second state to criminalize race-based hair discrimination after Governor Andrew Cuomo signed a bill amending the state’s Human Rights Law in July 2019. The CROWN Act,  which seeks to end race-based discrimination against natural hairstyles at work and school, is currently law in fifteen American states. The Act expanded the definition of race in the State Education Code and the Fair Employment and Housing Act. Various states include slightly varying styles beyond mere texture within their range of prohibition (some including twists, locks, and hair wraps).

In March 2022, the U.S. House of Representatives passed Bill H.R.2116, which “prohibits discrimination based on a person’s hair texture or hairstyle if that style or texture is commonly associated with a particular race or national origin.” The legislation is awaiting approval by the Senate. Under this bill, hair texture and protective hairstyles would be granted federal protection from discrimination. 

The Situation in Canada 

In 2016, Akua Agyemfra, a server at a Toronto Jack Astor restaurant wore her natural hair in a bun and was sent home by the manager who required that female staff wear their hair down, despite Agyemfra showing that her natural hair does not fall straight. In the same year, Cree Ballah, a biracial employee, was asked by fast-fashion brand Zara to remove her box braids and told they did not fit the brand’s “clean professional look”. In 2019, Edmonton AGO Bistro worker, Natasha Doyle-Merrick, quit her job after being told her hair could ‘scare’ customers. This is unfortunate, as employees should not have to quit in such instances. However, environments that scrutinize Afro hair in such a manner are also often the host of other toxic and discriminatory behaviours. 

In 2014, Lettia McNickle was working as a hostess at Madisons Bar and Grill and was asked to leave because of her braids. Her hours were then cut until she was eventually firedThe Quebec Human Rights Commission held McNickle was the victim of racial and gender discrimination. and ordered the owner of the restaurant to pay $14,500 in damages. The case will proceed to the Human Rights Tribunal, as McNickle hadn’t received the money as of 2018. 

In the 2010 Human Rights Tribunal of Ontario case, Armstrong v. Anna’s Hair & Spa, a salon that refused to massage or wash Armstrong’s hair, arguing they don’t do “Black hair” (his hair was in dreadlocks) was ordered to pay compensation of $1,000 and complete the Ontario’s Human Rights Commission’s (HRC) online training module on human rights. The application related to sections 1 and 9 of the Human Rights Code, which provides that “every person has a right to equal treatment with respect to services without discrimination because of a number of grounds, including race, colour, and ethnic origin, and no person shall infringe or do, directly, or indirectly anything that infringes a right.”

The amount awarded is low: although the Tribunal recognized the humiliation, “hurt feelings”, and affront on dignity suffered by the complainant, it found that the respondent’s offensive treatment was on the “low end”. 

Subsection 45.2 of the Human Rights Code provides the remedial powers of the tribunal to issue an order directing a party who infringed a right to (1) pay monetary compensation, (2) make restitution to the party whose right was infringed, and (3) perform any act the tribunal believes the party ought to do to promote compliance with the Act.

Requesting that a defendant complete the human rights online training module seems to be a common sanction in discrimination cases heard at the Ontario Human Rights Tribunal. However, one can question its efficacy since there is insufficient  evidence that implicit bias training actually works, with some evidence even suggesting that it does not work, because it was never meant to

The rationale behind the training modules of the Human Rights Commission is said to be that they are “central to any effort to build a “human rights culture” within an organization […] [and] can deepen understanding and awareness of human rights issues.” While the issues of race-based hair discrimination previously mentioned are direct, rather than implicit, it is possible to draw parallels and similar inferences for these training strategies. 

The Tribunal recognized that anti-black racism is embedded in the community’s psyche and found that the subtle manifestations of Anti-Black racism are well-recognized in Canadian law. It further noted that assumptions about “Black” hair, like the ones verbalized by the hair salon are nonsensical and stereotypical and we don’t apply such statements to “white” or “Asian” hair. 

While the HRC training seeks to encourage organization through knowledge of the Code and human rights issues to comply and avoid discriminatory behaviour, one may wonder how effective these can be when much of the discriminatory practices have been entrenched in community. 

While hair discrimination is a common occurrence in Canada, Canadian law remains mostly silent on the matter. Currently, hair is not directly recognized as a protected ground, and rather falls within the protected ground of race. While race-based hair discrimination is obviously racist, the lack of explicit protection by the law maintains some ambiguity as to whether hair can be protected, leaving space to argumentation on its immutable nature. Consequently, in cases of hair discrimination, seeking justice through the legal system can often be impossible or very costly for claimants. 

Conclusion

Black hair has been an important part of Black liberation movements. Canadian civilian rights leader, Viola Desmond, who is featured on some of our ten-dollar bills, launched the first hairdressing school of its kind in Nova Scotia after being rejected by all beautician schools for being Black. 

The recognition of the insidious policing of Afro hair and the assertion by American law that Afro hairstyles are just as “professional” as blowouts is a necessary step for race equality. 

Alongside other Black liberation movements throughout history, there have been multiple waves of the natural hair movement, each marking a different era and significance of Black hair in the sociopolitical sphere. The movement encourages Black people to proudly wear their hair in their natural or cultural styles. The number of high-profile Black women seen in their afro hairstyles is increasing. The CROWN Act finally legitimizes the demands of generations of Black women. Thus, we are starting to see a shift in the space and discourse surrounding afro hair. Legal protection against discrimination and a drastic cultural shift on views surrounding Black hair would allow future generations of Black girls to embrace their natural curls without fear of microaggressions, educational, and employment discrimination. 

The current state of Canadian law does not adequately protect Black people from being discriminated against on the basis of their hair texture or choice for protective styling. For the sake of promoting race equality, Canadian policy makers ought to consider implementing measures similar to the CROWN Act. 

Neurotech, Cognition, and Justice: Can Neurolaw Bring Fairness to the Courts?

Contributed by Annaëlle Barreau

Introduction

Mental health is often stigmatized in society. That stigmatization is reflected in courts, namely when defendants invoke non-responsibility due to mental illness. While the law deals with values of rationality, mental illness touches upon subjective experiences of personhood, rather than the inherent capacity to behave rationally. Additionally, race plays a role in who successfully displays their mental health concerns versus who gets further stigmatized. Evidence shows that trainings in cultural sensitivity and implicit bias training fail to provide adequate results. When analyzing such interventions, it seems that their design was based on a motivation to limit cooperate risk and liability rather than promote equality. We may want to turn ourselves to scientific evidence instead. Is it possible that the use of neuroimaging techniques by conferring a higher level of objectivity might aid the reduction of biases in the court system? Neurotech may appease the fears of the public towards individuals emulating mental illness, and thus reducing stigma of mental health evidence in courts.

Background: Quick Facts on Neuroimaging

The mapping of brain functioning finds its origin in phrenology over two centuries ago where bumps on the skull were measured and used to assess mental functioning and traits. Since then, several brain imaging techniques have emerged, with distinct strengths and limitations with regards to different factors, namely, the degree of invasiveness, the spatial resolution, the temporal resolutions, and the tasks that can be executed. Brain imaging allows experts to see whether one’s brain is structurally and/or functionally typical. The use of neuroscience in legal proceedings dates back to the early twentieth century and has been rapidly increasing in the past few decades. In mock trials, where the defendant has been diagnosed with schizophrenia, there was a mitigating effect of the use of neuroscientific expert evidence on the jury’s death sentence verdict. People are thus more lenient in sentencing individuals who are mentally ill. When there is neuroscientific support, it may also render objective the subjective which confers a wide range of benefits.


The use of neuroscience in legal proceedings dates back to the early twentieth century and has been rapidly increasing in the past few decades. || (Source: pixabay // geralt)

Cognition and the Law

Jennifer A. Chandler, a legal scholar and law professor at the University of Ottawa, argues that neurological approaches to the law affect legal rules and practices which will be enhanced with the sophistication of biological psychiatric and neuroscientific techniques. The subjective mental states of individuals are often of great relevance to the courts and legal questions. Subjective mental states, like pain, memories, and sexual desires remain private. However, with the advent of functional magnetic resonance imaging (fMRI), a high spatial resolution brain imaging test which works by detecting patterns of blood oxygenation as a blood flow proxy, reflecting the activation of different parts of the brain, render these once invisible mental experiences, accessible to outsiders through patterns of brain activation.

In Canada, for forensic risk assessment of sexual offenders the use of phallometry, a penile measurement detecting sexual arousal, is employed. Research demonstrates that fMRI would be able to distinguish between different types of sexual interests and detect those that are indictable if enacted upon. Additionally, the detection of pain afforded by fMRI brings a whole range of possibility in claims of chronic pain, physical injuries, disability insurance claims.

Further, electroencephalography (EEG) and fMRI allow under controlled laboratory conditions to detect true memories from false ones and deception. With these techniques refining their accuracy, we may be close to a scientifically viable alternative to polygraphs. Thus, we have the potential to shift away from oral evidence and perhaps let the brain speak. We may lighten the burden to prove the veracity of one’s suffering or the falsity of a third party’s claims. fMRI scans are distinguishable from polygraphs that measure autonomic stress responses such as fluctuations in pulse, breathing, and heart rate.

Neuroscience and the Private Law

Neurotech as a means to provide fairer sentencing and assessing accused’s mental capabilities in criminal legal proceedings has long been scrutinized. However, neuropsychological analysis is not limited to criminal justice, but is also relevant in civil legal matters. The practice of private law is centered on the idea of a reasonable human. However, cognitive science forces us to rethink humans as always behaving at the peak of their mental capabilities. Contract and tort law focus on concepts such as “meeting of minds,” “free will,” or “expression of intention”, and in a cognitively driven marketplace, the understanding of human psychology is critical for jurists to grasp within the ever-changing landscape of private law.

When looking at Anglo-American and international law, we see that neuroscientist insight has already been made useful in civil law manners of liability law, health law, family law, and contract law. In torts, legal system neuroimaging can provide objective insight into personal injury claims related to subjective experiences of pain. In many cases of accidents for instance, victims who suffer from post-whiplash syndrome still experience pain several years after the accident. Although this pain is often difficult to prove when an MRI scan fails to identify any damage, neuroscience technologies can corroborate the pain of those who are unable to verbally communicate it, such as unconscious individuals or infants. Neuroscience challenges tort doctrine and policy by rendering more transparency when it comes to granting damages. It gives access to invisible injuries, thus combatting the skepticism towards many victims suffering PTSD or other forms of trauma and upholding mental well-being as a value as important as physical well-being. In civil proceedings, in Canadian courts, there is increased receptivity to the admission of neuroscience with imaging being used as a to determine damages, with potential to affirm exempting conditions from negligence.Neuroscience has the potential of shifting our understanding of reasonableness standards and exempting certain individuals from these standards, thus narrowing the potential of establishing fault. A dilemma is raised to the already existing struggles of balance in tortious compensation, where treatment of mentally ill individuals and equity is a tricky one. In fact, the equitable treatment of a mentally ill individuals causing harm can mean the inequitable treatment of a victim not being able to seek compensation.

What about Human Rights?

The benefits seen in torts can extend to human rights concerns. While still bourgeoning, there is tremendous potential, for neurolaw to grant justice to individuals whose pain is traditionally unreported, such as marginalized communities and victims of abuse. Neuroimaging will allow victims’ testimonies that are usually seen as insufficient in cases of emotional suffering, PTSD, mild traumatic injuries, and toxic exposure, to be visible and to some extent quantifiable to judicial decision makers.

The Intersection of Racism and Mental Health Stigma in Courts

Members of racialized communities often have more difficulty being granted mental health diversion. Jurors are less likely to accept an NGRI defense for Black defendants compared to their white counterparts. Evidence shows prejudice along sex and race for according the plea of mental “insanity”. Successful acquitters under NGRI are overwhelming older, white, well-educated defendants, who are also more likely to have been diagnosed with schizophrenia. The use of neuroscience to assess brain functioning further objectively, will narrow the space for systemic biases.   

In Canada

While Canadian courts are considering many types of neuroscientific evidence, the use of cutting-edge techniques like fMRI have yet to enter our justice system. Rare instances where innovative brain imaging is mentioned in cases, it often does not favour the party invoking it. In Bialkowski v Banfield (2011) which involved a brain injury claim, the court held that while qEEG evidence may be admissible in appropriate cases, in this case, the plaintiff’s report did not pass the four-step test of reliability for novel scientific evidence as established in R v Mohan. Currently, the use of neuroscience in Canada is common, but reserved mainly for assessing brain damage following prenatal exposure to alcohol, neurophysiological testing, and traumatic brain injuries.

In Carter v Canada and the passing of Bill C-14 by Parliament, mature minors were not granted access to medical assistance in dying.  Neuroimaging is relevant in this case, as it is mostly MRIs which can demonstrate critical differences between young adult and older adult brains. The prefrontal cortex, which governs several executive brain functions and behavioural regulation only completes its maturation at 25 years of age. This could indirectly address the issue of adultification of Black youth, by which they tend to be treated more harshly than their non-Black counterparts.

Limits of Neuroimaging

There remain several issues neuroimaging cannot comprehensively address in judicial proceedings and pragmatic concerns. Brain imaging is significantly more costly than traditional scientific evidence. Importantly, while the neuroimaging is capable of showing sign of abnormal activity on some level of causal information, they do not provide causal certainty.

Just like polygraphs, neuroimaging is flawed. For instance, it is possible for one to remember something while the fMRI suggests that it is a false memory. Therefore, although it’s an objective measure, it is subject to error.

This almost intimate access to people’s private thoughts increasingly raises questions of neuroprivacy and ethics.

It has been argued that neurotech has the potential of violating many Charter provisions in Canada. For instance, s. 13 of the Charter protects against self-incrimination. If neural firings show deception, the person arguably, has self-incriminated, thus violating their s. 13 Charter right and rendering the neuroimage inadmissible as evidence and antithetical.

Some have advanced that colourful brain imaging reports may be accepted uncritically and weighted disproportionally, however it seems that the seductive powers of brain imaging are now fading.

Human interpretation is fundamental in the legal system, and science can never overtake it, rather simply inform and guide jurist’s judgements. Human elements of morality are and will remain embedded in the law and cultural norms making it so neuroscience will not be capable of independently answering ultimate legal questions culpability.


There remain several issues neuroimaging cannot comprehensively address in judicial proceedings and pragmatic concerns. || (Source: pixabay // kalhh)

Conclusion

The rendition of once intangible harms into colourful brain data is a powerful tool to add to victim testimonies. Neuroscience provides insight in human behaviour which can afford us with more accurate policymaking tools. Many neuro and cognitive scientists are steadily shifting and even questioning the fundamental concept of freewill, on which rests the legitimacy of our justice system. In fact, when using a disease model of addiction, one can see the biological forces in motivation, thus discrediting the veneration of free-decision making seen in society. While it is more than reasonable to doubt the end of our normative understanding of human agency and deterrent aspect on which punishment lies, neuroscience is establishing itself in international jurisprudence and challenges the status quo across fundamental principles of the legal spectrum.

Like any other tool, neurotech confers advantages and benefits. But when used correctly and within ethical boundaries, it can provide relief to victims, give a voice to those who would otherwise be silenced and objectively enable us to see the thoughts of those who are doubted – thus aiding us in bringing fairness to the courtroom.

Annaëlle Barreau is a Junior Online Editor with the McGill Journal of Law and Health. She is currently in her first year of the BCL/JD program at McGill University’s Faculty of Law. Prior to starting law school, she obtained a Bachelor of Psychology and Sociology from McGill University.