Friday, April 1, 2016

Mississippi 'Religious Freedom' Hareem Pants and Substantive Due Process.

Hareem skirts (pants) were extremely controversial in 1910. Both Upstairs Downstairs and Downton Abbey comment on it. This picture was in the 1913 Montreal Saturday Mirror aimed at uppercrust women, so by then the fashion was acceptable but avant garde. Of course, the style was 'exotic' as in non-Christian.

According to an article on Salon, the new Mississippi religious freedom law, just passed in their legislature, isn't only anti LGTB but also might allow any employer  or school official to decide whether an employee or student is wearing gender appropriate garb.

A boss could even force a woman to wear more make-up. (So the author claims.)

This comes just a day after an Oxford scholar showed me a picture of a militant suffragette dressed as a man in a working class suit and said "She doesn't really look like a man, does she? She wouldn't fool anyone."

Well, maybe not from our modern post-Hepburn perspective.

In 1910, the era of the suffragettes, it was still illegal for a woman to dress as a man and vice versa, so this slim  militant was already breaking the law, even before she threw a rock at an MP's window.

And if women never stepped outside in pants and jacket, maybe the pretty suffragette did fool everyone.

Back then, a woman dressing as a man wasn't merely immoral, it was somehow dangerous to society at large.   And, you didn't have to be a militant. That's why it was illegal.

Two articles from 1912 Montreal Gazette. Suffragettes were often attacked for 'being like men' so they usually dressed very fashionably. They used  oufits to great theatrical purpose, too, sometimes dressing up in fine costumes and sometimes dressing down in working class rags.

How do I know?

I found this in an article on American legal history. University of Chicago. Law and Morals in Legal Thought  by Herbert Hovencamp.) It's a great article.

Quoting a 1890's jurist Tiedeman on Substantive Due Process in a book Police Power:

" It (police action) cannot be called into play in order to save one from the evil consequences of his own vices, for the violation of a right by the action of another must exist or be threatened, in order to justify the interference of law. Applying this principle, he suggested that the state could clearly prevent public nudity, but suggested that it lacked the power to prevent someone from going about in his or her undergarments. Likewise, the state could lawfully prohibit men from wearing women's clothes. However, "it does not follow that a law, which prohibited the use by men of a specific article of women's dress, or to women the use of a particular piece of men's clothing, would be constitutional. The prohibition must be confined to those cases, in which immorality or the practice of deception is facilitated, viz., where one sex appears altogether in the usual attire of the other sex."

So even back then a man might wear women's underwear or a woman could wear hareem PANTS.

So it seems telling people to wear make-up would be unconstitutional, although I'm sure it has already been done many many times in the case of stewardesses and waitresses, etc. But, that could be said to be all about contract, I guess.

In fact, I recall back in the 1980's at the radio station I once worked in, a manager called in a PR person to say she dressed too drably.

The woman didn't make much money so she rotated a few classic outfits. She wouldn't have minded the criticism except that when she asked her boss how she might dress, he cited a cleavage-bearing co-worker as an example.