Normally when we hear about lawsuits brought before the courts on behalf of those engaged in gender impersonation they stem from laws designed to force women to share bathrooms, changing facilities and showers with men. There’s another case in California going on which dives off into completely new territory, however. Can a barber shop refuse to cut the hair of a woman who “identifies” as a man? We may soon find out. (LA Times)

A transgender man is suing a Long Beach barbershop because the barber refused to cut his hair after they identified him as a woman. Rose Trevis said the Hawleywoods barbershop in Long Beach refused him service because they said they didn’t serve women.

“I felt very upset, discriminated against,” Trevis said. “I was surprised. It was very embarrassing.”

The lawsuit said the barbershop claimed it had a policy that did not allow women’s haircuts and had the right to refuse services to anyone.

So Rose apparently “identifies” as a man and went into this barber shop seeking a haircut. She clearly has a short cropped style going on which would not be unusual for any male, and if you colored it sufficiently gray it’s pretty much the same as mine. (A picture is provided at the end of this article.) Let’s dismiss right off the bat the idea that either the government or any private business has the right to dictate hairstyles except in cases where health or safety is involved. (You can clearly make the case that hairnets or covers must be worn by individuals working around food, in an operating room, near heavy machinery, etc.)

This case appears to be entirely different from bathroom privacy law disputes, children being subjected to chemical intervention which thwarts their normal biological development or any of the other “T word” battles we’ve covered here. The barber shop is refusing service to a customer who is seeking the specific service they provide as part of the definition of their business model. Can they do that? They aren’t claiming that they won’t serve “women” in their defense (or even men, for that matter). Nor do they seem to be identifying the customer as being part of an allegedly oppressed group, since no mention of Rose’s “transgender” status is indicated. But their argument hinges on a combination of their policy of not providing “women’s haircuts” and their right to refuse service to anyone.

We’ll need to break this down into two debates. First… what is a “women’s haircut” for purposes of this lawsuit? I’ve only done a quick search, but the term doesn’t appear to even exist in legal history. There are many women with very short hair and an equal number of men with flowing locks which would make some runway models jealous. If I were the judge hearing that defense in my courtroom I’d probably laugh them out of the building.

The second item is problematic for libertarians, but unfortunately falls under mostly settled law. A free market economy take on the claim insists that any business owner should be able to refuse service to anyone at all for any reason or no reason. If their refusal makes them unpopular with enough people, their business will suffer or fail entirely. If their policy is popular, they will thrive. At the same time, an aggrieved class of consumers still requires those services and represent a potential market opening, so other vendors would arise to fill that vacuum and everyone is served in the end.

But the law doesn’t see things that way and it’s been essentially settled since the lunch counter claims from the beginning of the civil rights era. I say “essentially” here because there is much hypocrisy in the law on this score and exceptions are frequently allowed where politically popular. Restaurants can refuse service to people based on how they are dressed regardless of the disparate impact it has on those of lower economic status. There are a few other notable, but clearly contradictory examples.

Unfortunately for the barber shop involved here, none of those exceptions would seem to apply. They are also taking on a very politically powerful demographic and are unlikely to find any friends in the courts willing to take their side. This is easily portrayed by the plaintiff as a case of discrimination against the LGBT community whether that was the intent of the owners or not and I would be willing to bet that Rose prevails in her suit.

We’ll close with a brief video of the local news coverage and a photo of the plaintiff to show the hairstyle in question.

RoseTrevis