\\jciprod01\productn\N\NYU\87-4\NYU401.txt unknown Seq: 1 25-SEP-12 11:37 NEW YORK UNIVERSITY LAW REVIEW VOLUME 87 OCTOBER 2012 NUMBER 4 ARTICLES CORRECTING RACE AND GENDER: PRISON REGULATION OF SOCIAL HIERARCHY THROUGH DRESS GABRIEL ARKLES* This Article examines the enforcement of racialized gender norms through the reg- ulation of dress in prisons. Dress, including hair and clothing, is central to the ways government and other institutions enforce hierarchical social norms. These norms are based on the intersection of race and gender, as well as religion, sexuality, class, age, and disability. For many people, dress is a way to express identity, exercise autonomy, practice religion, participate politically, experience pleasure, preserve health, or avoid violence. My review of prison dress regulations shows that prison systems commonly impose penalties including solitary confinement for deviations from dominant social norms. Examples of these deviations include wearing hair in an Afro, covering hair with a headscarf, or having long hair if incarcerated as a man. I situate prison rules in the historical context of dress regulation and prison evolution in the United States. The justifications—such as repression of homosexu- ality and group affiliation, prevention of attacks and escapes, and promotion of hygiene and rehabilitation—that prison officials offer for these rules raise norma- tive and instrumental concerns. Nonetheless, courts frequently diminish individual and community interests in dress while deferring to prison regulations that lack complete or credible justifications. In furtherance of the goal of prison abolition, I propose an integrated approach for change through policy amendments, doctrinal shifts, and broader grassroots efforts for social transformation. * Copyright 2012 by Gabriel Arkles, Acting Assistant Professor of Lawyering, New York University School of Law. For their extraordinary inspiration, insights, and support, I would like to thank Noa Ben Asher, Owen Daniel-McCarter, Pooja Gehi, Susan Hazeldean, Lauren Jones, Sylvia Law, Lynn Lu, Deborah Malamud, Gowri Ramachandran, Danya Reda, Andrea Ritchie, Mark Sabel, Giovanna Shay, Dean Spade, Chase Strangio, Cole Thaler, Carrie Toole, Mary Warner, Rebecca Widom, Alisha Williams, Kenji Yoshino, the participants in the New York University Lawyering Scholarship Colloquium, the editors of the New York University Law Review, and the many currently and formerly imprisoned people with whom I have worked. 859 \\jciprod01\productn\N\NYU\87-4\NYU401.txt unknown Seq: 2 25-SEP-12 11:37 860 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:859 INTRODUCTION ................................................. 861 R I. HOW DRESS MATTERS .................................. 867 R A. Identity, Dignity, and Bodily Integrity ............... 868 R B. Communication, Politics, Culture, and Religion ..... 869 R C. Health, Safety, Survival, and Happiness ............. 871 R II. HISTORY OF DRESS REGULATION AND INCARCERATION ........................................ 874 R A. Dress Regulation .................................... 874 R 1. From Europe to the Americas: Roots of Sumptuary Law ................................. 874 R 2. Colonialism ..................................... 875 R 3. Slavery .......................................... 876 R 4. Immigration Enforcement ....................... 878 R 5. Cross-Dressing Laws ............................ 880 R 6. Dress Regulation Targeting Religious Garb, Public Disability, and Youth of Color........... 883 R B. The Evolution of Prisons in the United States ....... 887 R III. PRISON DRESS REGULATION ............................ 896 R A. Policies ............................................. 897 R 1. Hair ............................................ 897 R 2. Clothing and Other Dress ....................... 899 R 3. Punishments .................................... 901 R B. Practice ............................................. 904 R IV. PENOLOGICAL JUSTIFICATIONS FOR REGULATING PRISON DRESS .......................................... 905 R A. Repressing Homosexuality .......................... 908 R B. Repressing Gang Affiliation and Group Identification ........................................ 909 R C. Protecting Vulnerable Imprisoned People ........... 911 R D. Recognizing Gender Differences .................... 914 R E. Identifying Imprisoned People and Preventing Escape .............................................. 915 R F. Finding Contraband and Saving Time............... 917 R G. Promoting Hygiene ................................. 918 R H. Extracting Labor .................................... 919 R I. Promoting Rehabilitation............................ 920 R V. JUDICIAL TREATMENT OF PRISON DRESS ............... 922 R A. Diminishing Imprisoned People’s Interests .......... 922 R B. Giving Weight to Government Interests ............. 927 R C. Exceptions .......................................... 928 R VI. AVENUES FOR CHANGE ................................. 929 R A. Regulatory Change .................................. 930 R B. Doctrinal Change ................................... 931 R \\jciprod01\productn\N\NYU\87-4\NYU401.txt unknown Seq: 3 25-SEP-12 11:37 October 2012] CORRECTING RACE AND GENDER 861 1. Freedom To Dress .............................. 931 R 2. First Amendment (Re)Visions ................... 934 R 3. Transparency in Rulemaking .................... 936 R C. Transformative Change ............................. 939 R 1. Abolitionist Analysis ............................ 940 R 2. Broad Mobilization ............................. 942 R 3. Direct Resistance and Support .................. 944 R CONCLUSION ................................................... 945 R APPENDIX A: CHARTS AND FIGURES ........................... 948 R APPENDIX B: INDEX OF STATE PRISON REGULATIONS ......... 949 R “[N]o white American ever thinks that any other race is wholly civilized until he wears the white man’s clothes . .” —Booker T. Washington1 “How they control you and mandate you to this gender binary is if you’re in a women’s facility you must wear whatever society says is for women. At CIW when I first got there, I had on boxers; they took them, said they were contraband. Then they make you wear panties and a mumu, an old lady housedress.” —Bakari2 “[I]f ‘the category of “inmate” in the United States today . [is] a racialized one,’ corrections regulation may be conceived as a kind of racialized law-making.” —Giovanna Shay3 INTRODUCTION Throughout the United States, prison systems lock people in soli- tary confinement for such offenses as wearing dreadlocks or Afros, possessing nail polish in a men’s facility, or wearing boxers in a women’s facility. Guards beat, subdue, and forcibly shave the heads of Native men, transgender women,4 and other people in men’s prisons 1 BOOKER T. WASHINGTON, UP FROM SLAVERY 68 (2d ed., Penguin Group 2010). 2 Julia Sudbury, From Women Prisoners to People in Women’s Prisons: Challenging the Gender Binary in Antiprison Work, in RAZOR WIRE WOMEN 169, 177 (Jodie Michelle Lawston & Ashley E. Lucas eds., 2011). 3 Giovanna Shay, Ad Law Incarcerated, 14 BERKELEY J. CRIM. L. 329, 330–31 (2009) (quoting Sharon Dolovich, Foreword: Incarceration American-Style, 3 HARV. L. & POL’Y REV. 237, 255 (2009)). 4 Transgender women or trans women are those who now self-identify as women who were identified by others as male at birth. Transgender men or trans men are those who now self-identify as men who were identified by others as female at birth. Not all trans- gender people identify as men or as women. I refer to people who are not transgender as non-transgender or non-trans. \\jciprod01\productn\N\NYU\87-4\NYU401.txt unknown Seq: 4 25-SEP-12 11:37 862 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:859 with long hair. Imprisoned people may lose credits earned toward early release due to braiding another person’s hair or wearing tight or sagging pants.5 In this Article, I use these types of prison dress6 regulations to explore the enforcement of racialized gender norms in the U.S. crim- inal legal system. Dress is a central means through which people convey and perceive social meaning;7 its regulation provides a nuanced prism for examination of larger systems of hierarchy. Although courts and commentators often claim that concerns about dress are trivial, dress has been regulated throughout history and has provoked severe responses in the U.S. criminal legal system. Dress is also sufficiently important to individuals and communities that many resist restrictions on their dress even when faced with serious punishment. Additionally, race and gender are central axes around which society, and societal fixation on dress regulation, is structured. Institutional and interpersonal enforcement of norms of race and gender perpetuate the subordination of people of color, women, and transgender people.8 Looking at norms of race and gender separately, however, is misleading. Race is the lens through which gender is con- structed and vice versa.9 Kimberle ´ Crenshaw has written about how women of color are marginalized within both anti-racist discourses— constructed around men of color’s experience—and in feminist dis- courses—constructed around White women’s experience.10 The expe- rience of women of color is not additive; it is not the same as White women’s experience plus men of color’s experience.11 Instead, women 5 See infra Part III. 6 I use the term dress to encompass “hairstyle, makeup, clothing, shoes, head cover- ings, tattoos, jewelry, and other