New Bill Proposes Licensure and Regulation for Hair Braiders

Just two months ago, a federal judge ruled in favor of a small businesswoman wishing to braid the hair of consenting customers without having to apply for a license and receive state-approved training with hundreds of hours of class instruction.

Today, the cosmetology industry began its push back against the ruling.

In the Business and Labor Interim Committee, a proposed bill sponsored by Rep. Dunnigan (read it here) was discussed which would require those offering hair braiding services for pay to:

• submit an application;
• pay a fee;
• be of good moral character (huh?);
• graduate from a licensed or recognized hair braiding school or a licensed or recognized cosmetology/barber school whose curriculum consists of at least eight weeks of hair-braiding related instruction and includes at least 300 hours of instruction or the equivalent number of credit hours; and
• pass an exam.

The entirety of this section of code, currently titled the “Barber, Cosmetologist/Barber, Esthetician, Electrologist, and Nail Technician Licensing Act,” needs to be completely repealed from the code; the government does not have legitimately delegated authority to regulate and interfere in the peaceful, commercial transactions of consenting adults.

Proponents of this bill have argued for further regulation in the past on grounds of protecting “the public health and safety.” With hair dyes and chemicals, one might argue that the use of such toxic products may justify some modest regulation to ensure they are used properly. (We would disagree, but that’s besides the point.) With hair braiding, however, no such products are used; braiding hair poses almost zero threat to one’s health and safety.

As such, it is clearly evident that the effort to license and regulate hair braiders has nothing to do with protecting customers, and everything to do with protecting the economic bottom line of those in the cosmetology industry. The proper role of government is to protect life, liberty, and property—not to coerce small business owners into jumping through regulatory hoops that discourage competition so as to benefit the established, leading companies.

I said as much in my remarks before the committee in this afternoon’s hearing. I presented a modified, ad-lib version of the following remarks:

The Utah Constitution, Section 27 states: “Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” As this committee considers proposed legislation to further regulate entrepreneurial activity, we would do well to pause and reflect on fundamental principles to determine whether such an action is prudent and consistent with the security of individual rights.

An example may help to illustrate. Suppose my neighbor braids hair, and another neighbor wishes to have her hair braided. Do I as a third party have the right to intervene in this consensual contract between adults? When no harm has been done to me, or anybody, do I have the moral authority to dictate upon what terms these individuals can engage in commerce? I contend that I would have no such authority to interfere in this peaceful transaction, and lacking any authority on the matter, I cannot delegate power to the government to intervene on my behalf. In short, imposing regulations regarding hair braiding and penalties for non-compliance does not secure individual rights, but violates it.

Jestina Clayton sued this state because of the onerous and illegitimate regulations prohibiting her from braiding the hair of consenting customers. In the opinion which sided with her position, Judge David Sam of the U.S. District Court stated that “The right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that the Constitution was designed to protect.” If the Constitution was designed to protect such commerce, then we should not be passing legislation which prohibits it.

Regulations such as those proposed in this bill do not secure individual rights, and therefore do not perpetuate free government. If they accomplish anything, it is the protection of the economic bottom line of the cosmetology industry which stands to benefit from coerced enrollment in its schools. Indeed, as was clearly stated in a 2009 study by Harvard and Dartmouth universities, “Regulation is a detriment to entrepreneurial activity.” In a state that often touts itself as being business friendly, led by a Governor who has asked the government to reduce and eliminate regulation, why would we consider moving in the opposite direction? Doing so would not be in the interest of individual liberty; it would be in the interest of those special interests present here today speaking in favor of a bill creating yet more economic protectionism.

Judge Sam’s opinion also noted that “the State has never investigated whether hair braiding is a threat to public health or safety.” Lacking such an investigation, we question why the sponsor would promote this bill so quickly after the Jestina Clayton case.

This bill exempts hair braiders who offer their services for free, but requires a government permission slip for those who are charging money to braid hair. If the activity of braiding hair was in fact a threat to public health and safety, why would the lack of monetary compensation eliminate concerns regarding the health and safety of hair braiding?

Further, the bill offers an exemption for hair braiders who are paid, but who only perform a single type of braid to customers — an exemption which will apply to nobody in Utah. In other words, the bill would say that it is okay to pay a hair braider to do a french braid, but if you want that same person to do dreadlocks, the hair braider must submit an application, pay a fee, be of good moral character (how that is relevant to braiding hair, I’m not sure), receive hundreds of hours in schooling, and pass an arbitrary exam.

If proponents of this legislation want to argue that hair braiding needs regulation due to public health and safety concerns, then they cannot accept any of these exemptions; either hair braiding is dangerous and therefore subject to training and regulation, or it is not. We argue, as we believe common sense dictates, that it is not.

Because we at Libertas Institute promote individual liberty, we therefore must oppose this bill. We encourage the committee to heed the Utah Constitution’s counsel and base your decision on the fundamental principles necessary to secure individual rights. We submit that doing so will lead you to oppose further regulation of peaceful, entrepreneurial activity, and we therefore encourage you oppose this bill.

The cosmetologists were out in full force at the meeting (see the photo), with all sorts of crazy braids in their hair—braids we can only hope were done by licensed individuals. Proponents engaged in all sorts of fear-mongering about the dangers inherent in braiding, though no data or studies were presented to show as much; only hypothetical stories were offered as to what might go wrong if somebody doesn’t get enough education.

Proponents also argued that hair braiders currently must attend 2,000 hours of school as per the existing law. This is not the case—DOPL claims that hair braiders must obtain a license, but the actual law says no such thing. But the argument carried the day, as legislators spoke in favor of the bill as a “great first step,” as one committee member said, thinking that this was a reduction in hours for hair braiders.

The committee should have instead tabled this bill, allowing a substitute to be brought forward at a later date explicitly exempting hair braiders from licensure, to codify in greater clarity what the law already says: hair braiders are not required to obtain a cosmetology license (nor should they be).

Representative Pitcher moved the pass the bill out of committee with a favorable recommendation, and Rep. Duckworth seconded the motion. The motion passed, 15-2. From here, it will go to further committee meetings during the general session which begin in late January. Please send an email to your Senator and Representative encouraging them to oppose this bill as it works its way through the legislature. To find out who these legislators are in your area, click here.