Two years ago, I wrote about a constitutional challenge to Mississippi’s absurd eyebrow‐threading licensing requirement, filed by the Mississippi Justice Institute. It’s cases like these that motivated me to serve as the chairman of the board of advisors for MJI, and as an honorary fellow for its parent think tank, the Mississippi Center for Public Policy. That and the chance to attend Ole Miss football games, of course.
I’m happy to report that the eyebrow threading case has resulted in legislative success–on Friday, Gov. Tate Reeves signed a bill repealing the licensing rule–and has inspired other cosmetology‐related legal challenges and reforms in Mississippi as well.
As a reminder, threading is a safe and simple technique that uses twisted cotton thread, acting like a mini‐lasso, to remove stray hair, most commonly around the eyebrows. Threading originated centuries ago in South Asian countries like Nepal, where MJI’s client Dipa Bhattarai was born. It’s growing in popularity around the country because it is an elegant, simple, and relatively painless form of hair removal.
Dipa’s eyebrow‐threading business was shut down because she lacked an esthetician’s license, which requires 600 hours of beauty school classes–costing up to $12,000–even though the classes don’t teach eyebrow‐threading.
One of the reasons I was looking forward to the conclusion of this case is that it offered an opportunity to put more teeth into “rational basis” review, by showing that irrelevant licenses can’t survive even that minimal judicial scrutiny. A similar threading licensure was struck down under a more stringent standard under the Texas constitution in Patel v. Texas Department of Licensing & Regulation. Then‐Justice Don Willett (now a judge on the U.S. Court of Appeals for the Fifth Circuit) insisted in his Patel concurrence that the law would have been struck down even under the rational‐basis standard.
Alas, Mississippi went the way of other states that have been sued in federal court over irrational eyebrow‐threading licenses, and decided to amend its law rather than continue defending it in court. While the constitutional‐scholar side of me is disappointed, I’m of course happy for Dipa and other threaders in Mississippi.
Dipa’s case did highlight the usefulness of litigation in forcing states to repeal absurd laws. It’s one thing for a legislature to hastily pass some arbitrary barrier to entry that was cooked up by existing businesses on a state licensing board. It’s another for that same group of industry players to decide whether it really wants to spend time and attorneys’ fees defending rules that don’t pass the constitutional smell test.
Mississippi’s recent spate of occupational‐licensing lawsuits demonstrates this point. After Dipa filed her lawsuit, the state’s cosmetology board decided to shut down another eye‐beauty business, this time an eyelash extension lounge owned by Amy Burks. Eyelash extensions are sold in pairs at most retail outlets for self‐application, but it’s become popular for customers to pay technicians to attach individual lashes, which results in a more natural look. It’s a laborious process, but it’s perfectly safe and easy to learn.
The cosmetology board’s decision to go after Amy’s lash lounge was arguably worse than its efforts to shut down eyebrow‐threaders. Mississippi law doesn’t even require a license to apply eyelash extensions, but the board determined it had the authority to do so because it resulted in “beautification of the face.” After MJI sent a letter to the board threatening to file another lawsuit, the board again backed down, and asked the legislature to exempt eyelash artists.
But wait, there’s more! A private litigant also sued over Mississippi’s requirement to have a license to apply makeup. While the required training did cover makeup, it was only a small part of the curriculum, which was mainly focused on skincare and hair removal. Again, the cosmetology board decided to back down, and added makeup application to the growing list of licensing exemptions the state legislature passed this year.
This all adds to the exemption for hair braiders that Mississippi adopted in 2005, after Melony Armstrong sued the cosmetology board with the help of our friends at the Institute for Justice.
In sum, even when state‐based litigation doesn’t expand economic‐liberty jurisprudence, it can still prompt real‐world policy change that helps people pursue the American Dream. When it comes to the intersection of constitutional law and beauty treatments, I guess you can say the eyes have it.