Article 48 – A HAIR-RAISING EXPERIENCE – DISCRIMINATION IN A MODERN SOCIETY – DO WE NEED A “CROWN” ACT IN T&T?
By: Mr. Martin George
Attorney-at-law
Martin Anthony George & Co.
Attorneys-at-law
(Research Assistance provided by
Darrell Bartholomew, Attorney at Law)
MAGCO DAILY LEGAL LESSONS
DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.
INTRODUCTION
Historically, discrimination has proven to be one of the more controversial issues faced by individuals, certain segments of society, and certain classes of persons in a society as a whole. Broadly speaking, discrimination has to do with the unequal, inequitable or unfair treatment of different people or groups of people based on characteristics such as race, religion, sex, appearance or other physical characteristics and the term is normally used to reference treatment that is unfair or prejudicial.
When one hears the word discrimination, almost immediately, one thinks about our very own Black Power Movement and their staunch challenge against the then status quo of the then political and socio-economic order of the day whereby there appeared to be a distinct colour bias against the majority of persons of colour and a deliberate marginalisation and exclusion of them from mainstream society, better paying jobs and better opportunities for societal advancement and upward mobility. There was in the USA, the Civil Rights Movement led by Dr. Martin Luther King on a peaceful, pacifist path and Malcolm X and also the Black Panther Party who were on a more radical and confrontational pathway to force change and a shake-up in the status quo of racial segregation and a general disenfranchisement of African Americans and persons of colour in the USA. There were landmark decisions of the United States Supreme Court such as Brown v Board of Education 347 U.S. 483 (1954), which led to the de-segregation of schools.
As an orderly society with laws, rules and policies, throughout time, there have been many strategies employed by governments, non-governmental organisations, and other interested groups, all aimed at reducing and eliminating discrimination. Though these measures have been implemented with varying degrees of success, there is little doubt that discrimination still exists today, and from time to time, it is brought to the forefront by the treatment which is meted out by one group of people against another.
Recently, discrimination dominated our local headlines, when a group of students who attended the Trinity College, Moka, were prevented from full participation in their graduation ceremony because their hairstyles infringed on the school’s rules and regulations on dress code. A very bleak image of the students facing what appeared to be one of the walls of the school made the rounds on both mainstream and social media, and this once again reignited the local debate on discrimination.
DEFINITION
Amnesty International, the global human rights watchdog, explains that “discrimination occurs when a person is unable to enjoy his or her human rights or other legal rights on an equal basis with others because of an unjustified decision made in policy, law or treatment”
(‘Discrimination’, Amnesty International, www.amnesty.org/en/what-we-do/discrimination).
LAW
Protection against discrimination is enshrined in our Constitution, which recognises and protects fundamental human rights and freedoms. Section 4 of the Constitution provides that:
“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms…”
Section 4 goes on to list several fundamental rights and freedoms which are protected by our Constitution, including a person’s right to equality before the law and the protection of the law. Should an ordinary citizen allege that their fundamental rights and freedoms are infringed upon by some person or persons, especially in a context which suggests discrimination as the motive, they are normally able to approach our local Courts for relief by way of a Constitutional Motion.
In Trinidad and Tobago we also have the additional protections of the Equal Opportunity Commission and the Equal Opportunity Tribunal. The Equal Opportunity Act Chapter 22:03 of the Laws of T&T provides some additional protection for the ordinary citizen, and prohibits discrimination on the grounds of what it defines as “status”, and the Act contains a list of protected characteristics in relation to a person, namely, sex, race, ethnicity, origin (including geographical origin), religion, marital status, and disability. Given the earlier example of the ‘Trinity Boys’, the list provided in the Act begs the question as to whether protection against discrimination in T&T, does in fact extend to include an individual’s hairstyle.
In comparison, the United Kingdom’s Equality Act 2010 goes further than our local legislation, with its list of protected characteristics including gender reassignment, civil partnership, pregnancy and maternity, and sexual orientation. Interestingly enough, several states in the USA have actually implemented laws aimed at protecting against discrimination based on hair texture or hairstyle. The state of Illinois is one of the more recent states to do so, and by the signing into law on 1st July 2022 of the CROWN (Create a Respectful and Open Workplace For Natural Hair) Act (Public Act 102-1102), the definition of ‘race’ was expanded to include traits associated with race, such as hair texture, and protective hairstyles like braids, locks and twists. We do not have any Legislation in Trinidad and Tobago which is so specific to hair or hairstyles.
DISCRIMINATION AT HOME AND ABROAD
The Trinity Boys and their hairstyle choices take us back to 1995 when Republic Bank Limited suspended Mr. Michael Escalante, owing to him failing to cut his ponytail after being directed to do so by Bank officials so that his hair could conform to the Bank’s policy of ‘appropriate grooming’. After a legal challenge was brought in the Industrial Court on behalf of Mr. Escalante (No. 8 of 1995 Bank Employees Union v Republic Bank Limited), the Industrial Court determined the matter in favour of Mr. Escalante, explaining that as the Bank had condoned the ponytail for approximately two to four years, they were now barred from insisting that Mr. Escalante cut his hair.
As it pertains to students and their choice of hairstyle which they adopt during their attendance at school, the Trinity Boys matter is not the first instance of so discrimination due to a hairstyle. In the 2019/2020 school year, local newspapers reported that Ms. Kalika Morton, a student at St. Stephen’s College in Princes Town, had been picked upon because she went to school with her natural hair, styled in Bantu knots, twists and corn-rows. After the involvement of the School’s Supervisor and the Arch Deacon of the Anglican Church, as well as other high-ranking officials at the school, the school’s Principal gave assurances that neither Ms. Morton nor any other student at the school would be denied the opportunity to advance their education due to any form of discrimination in relation to their hairstyles, and Ms. Morton continued to wear her natural hairstyles to school.
It is interesting to note that the Education Act Chapter 39:01 also provides protection against discrimination. Section 7 of the Education Act provides that:
“No person shall be refused admission to any public school on account of the religious persuasion, race, social status or language of such person or his parent.”
While this provides some protections, it appears that it is not specific enough, given what appears to be the repetitive nature of the issue of hairstyles in schools, and one is left to wonder whether the provisions of our Education Act or our Laws in general, need to be amended to specifically provide the types of protection in the CROWN Act, given that this issue of discrimination based upon hairstyles seems to be once again rearing its ugly head, no pun intended.
We are also reminded of the incident in 2016 involving COLFIRE and one of its employees, where a letter was purportedly sent by the Human Resources Manager to Mr. Maurice Ramirez, an Afro-Trinidadian male, warning him about his “unprofessional hairstyle”, and suggesting that his hair should be kept clean, neat and well-groomed, in conformity with COLFIRE’s policies on professional image. After Mr. Ramirez posted a photo to social media of his hairstyle and the warning from the company, there was a public uproar and outcry against COLFIRE, with some going as far as to criticise the company’s policy and to call it racist.
The wearing of ‘dreadlocks” or “Rastafarian” hairstyles has on many occasions caused conflicts for persons in their workplaces or places of education. While the Legal Profession in T&T has been open and accepting in this regard, there are many arms of the State apparatus and protective Services such as the Police Service, Prisons Service, Airports Authority, Port Authority amongst others, which have definite hair grooming policies which in effect, end up being almost discriminatory against persons with ‘dreadlocks’ or “Rastafarian” hairstyles. A recent example of the effects of these types of policies surfaced in 2020 when Mr. Joshua Wallace, and Estate Constable of the Airports Authority of Trinidad and Tobago (AATT), alleged that he was being discriminated against by the AATT because of his choice of hairstyle. This came after Mr. Wallace was issued with a warning that he should cut his hair or risk the possibility of being faced with disciplinary action for non-compliance. Mr. Wallace informed his superiors at the AATT that he was a Black Jew and a follower of the teachings of the Twelve Tribes of Israel, and his Attorneys-at-law asserted that as a believer of the tenets of those religions, Mr. Wallace was required to grow the locks of his hair. It was also pointed out that Mr. Wallace had never before had an issue with his hair during his fourteen (14) years of employment with the AATT, and that there were other officers with Rastafarian and Hindu-based hairstyles who had not been similarly warned.
An interesting related case arose in or around 2005 when Mr. Shazim Mohammed, a Muslim prisoner then in the custody of the Trinidad and Tobago Prison Service at the Port of Spain and Carrera Prisons, had his beard shaved off on multiple occasions by prison officers. Mr. Mohammed subsequently approached the High Court, alleging that the prison officers had contravened his constitutional rights, as well as Prison Rule 248 which prevented the hair and beard of a ‘Mohammedan’ from being cut except by order of the Medical Officer on health related grounds. The matter was determined in favour of Mr. Mohammed and he was awarded a sum of money as damages for the breaches of his rights (H.C.A No. S1331 of 2005 Shazim Mohammed v The Attorney General of Trinidad and Tobago).
For years the Rastafarian community in Dominica had accused their Government of discrimination against them, given the country’s well-known reputation in years gone by, for their harsh and unequal treatment of Rastafarians, and the previous existence of laws on their books actually designed to combat Rastafarianism. Things are slowly changing there for the better. In T&T we are much more open and accepting, as we have Members of Parliament such as Mr. Fitzgerald Hinds (Member of Parliament for Laventille West and Minister of National Security), Mr. Adrian Leonce (Member of Parliament for Laventille East/Morvant and Minister in the Ministry of Housing and Urban Development) and Mr. Keith Scotland. (Member of Parliament for Port of Spain South), who all have Rastafarian, Dreadlocks or Twist-lock hairstyles. One therefore wonders, if it is acceptable in the highest Offices in the land, why is it objectionable and offensive in a Secondary School and does a child’s hairstyle really affect or impact his/her ability to learn? What’s more important – What’s on his head or in his head?
Under former President Trump, there were several rollbacks in the Legislative and Statutory protections which had been previously afforded to minorities and persons of colour in the USA. Last week, the heavily Trump-stacked United States Supreme Court (SCOTUS) rolled back years of Affirmative Action and “reverse discrimination” policies, which had allowed minorities and persons of colour, access to Ivy League Universities by specifically allocating a minimum number of places and spaces for them, in an attempt to redress centuries of institutionalized racism and discrimination against them which specifically kept them out of such Ivy League Universities and Colleges. SCOTUS has now ruled that race could no longer be considered as a factor in university admissions so there must be no preferential allocation of places or spaces for minorities or persons of colour.
This is a very impactful decision and it has many Universities now scrambling to see how they can make adjustments without appearing to revert to the centuries-old apparently discriminatory practices and this rejection of affirmative action in the USA by SCOTUS, is now being seen as a backward and retrograde step by millions (similar to the outcry against the reversal by SCOTUS of Roe v Wade 410 U.S. 113) and it poses an interesting conundrum in the context of discrimination, as it now means that steps such as Affirmative Action, taken to try to reverse historical discrimination against Minorities and persons of colour, can, depending on the circumstances, themselves be now considered to be discriminatory and illegal, according to this latest ruling by SCOTUS. This trend has also been continued by the subsequent decision of SCOTUS to reject the Biden plan for large scale debt-forgiveness for college and University students.
So while the Trinity College hairstyle issue may seem to be a minor issue in the grand scheme of things, the danger with Discrimination, is that it can start off slowly with one small issue, and yet could escalate rapidly and exponentially to the point where you have Hitler exterminating Six Million Jews, King Leopold of Belgium exterminating Ten Million Africans and the History of Mankind is littered with so many awful examples of the atrocities, savagery, brutalism and inhumanity which can flow from what can sometimes start as a simple act of Discrimination. The price of Freedom from Discrimination is indeed Eternal Vigilance, and so maybe, it is time for T&T to consider implementing its own version of the CROWN Act.
MAGCO Daily Legal Lessons – Article #48 – A HAIR-RAISING EXPERIENCE – DISCRIMINATION IN A MODERN SOCIETY – DO WE NEED A “CROWN” ACT IN T&T?
© 2023 MARTIN ANTHONY GEORGE & CO