Free Speech and the Clothes We Wear

by Nancy Jane Moore

One of the joys of working at home is that I rarely have to pay attention to how I dress for work. Most mornings I throw on a loose dress so I am sufficiently attired to answer the doorbell or step outside to water the plants. It’s only when I need leave the house to run an errand or meet someone for lunch or (shudder) cover a conference that I have to think about what I wear.

And I do think about it. I like bright colors and quirky patterns, so when I’m doing a reading or otherwise presenting my writerly self in public, I dress to stand out and show off. However, I’ve never felt competent at dressing in a way that was both stylish and conservative, so back in the days when I had to go to court, I used to wear boring suits.

Both styles conveyed messages. When I wear flashy clothes, I want to be seen as creative and unconventional. When I wore my beige Pendleton suit to represent a client in court, I wanted to be perceived as serious and competent.

But I hadn’t thought about dressing as a means of expression — one that should, in fact, be protected by the First Amendment here in the U.S. — until I read a scholarly essay by Jeffrey Kosbie entitled “(No) State Interests in Regulating Gender: How Supression of Gender Nonconformity Violates Freedom of Speech.”

Kosbie’s thesis is that when people dress in a way that society considers inappropriate for their biological sex at birth, they are expressing a message of gender nonconformity. Laws and policies that prohibit such attire therefore violate the First Amendment, he says.  Very rarely do the laws or policies have a reasonable purpose, he points out; most often the reason for such rules is that people who do not conform to societal gender norms make other people uncomfortable.

And that’s not good enough under the First Amendment.

Kosbie, who is finishing up a joint law degree and PhD in sociology at Northwestern, is treading new ground here, according to a post by Northwestern constitutional law professor Andrew Koppelman on Balkinization. Koppelman writes:

I work in the areas of both sex discrimination and free speech, and I had not seen the connection Kosbie draws until I read this paper.  Now I will never be able to think about this issue the same way again.  It is a major contribution.

I agree. I think about gender norms a lot — just a couple of weeks ago I blogged about why men don’t wear dresses — but it hadn’t quite occurred to me that dressing as the “wrong” gender was a form of speech.

Partly that’s because I’m impatient to get ahead of the current situation and reach a point where rules of dress aren’t governed by gender. That is, I’m thinking in future terms. I’m a science fiction writer after all.

But Kosbie is thinking about how we get to that future and what the law should do to help us reach that point. And as with most social change, we’ll get there due to the efforts of people who are willing to break the rules.



Free Speech and the Clothes We Wear — 2 Comments

  1. Signaling with clothing and attire is so easy and fun that I doubt it will ever cease. The only way to get people to quit doing it (as in Maoist China) is by harsh government repression, and even then people always squirrel around the rules, wearing lipstick and Victoria’s Secret under their burkas. It would just save a lot of energy, to give it up.

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