Readers of Liberty & Law may need no introduction to “eyebrow threading,” but the Texas Department of Licensing and Regulation sure did. The Department requires a license for threading, but it does not care if licensees learn anything about it.
Threading is a South Asian hair-removal technique that uses a single strand of cotton thread and nothing else. It is really neat to see: The threader starts with about 24 inches of common sewing thread, forms a lasso with her hands and, without touching the client, works the lasso with precision, quickly plucking unwanted hairs.
People with sensitive skin love threading because it is all-natural and gentler than waxing. Plus, it costs just a fraction of the price of other hair-removal methods.
Eyebrow threading was a booming industry in Texas. Then the Department ordered the state’s threaders to spend thousands of dollars and 750 hours in conventional beauty schools learning conventional cosmetology techniques—like waxing and microdermabrasion—that threaders do not use.
Worse, the state’s beauty schools are not required to spend even one minute on eyebrow threading, and the Department does not require anyone to show they can perform threading before they can get a license.
Nevertheless, in 2009, the Department attempted a crackdown. It ordered eyebrow threaders to stop working, hit them with $2,000 in fines, and threatened to shut down their businesses. IJ swiftly sued on behalf of three Texas threaders and two salon owners.
On February 27, the Supreme Court of Texas heard oral arguments in the threaders’ case—Ashish Patel v. Texas Department of Licensing & Regulation. It was my pleasure and privilege to argue on their behalf.
From the very beginning, our simple and compelling theme has been that the government cannot constitutionally license an occupation that it does not teach and does not test. That’s a rule IJ established in two successful hair-braiding challenges years before. Standing at the podium, it was encouraging to hear the justices using the same theme in their questioning. The justices were clearly troubled by the idea that someone’s right to do a job can depend on their first learning someone else’s job.
There is a broader principle at stake, as well: judicial engagement. In recent years, IJ has worked to change the terms of the debate about “judicial activism” and refocus judges and the broader public on the duty of courts to engage with the facts of the cases before them.
As part of that broader project, we asked the Court to decide which of three available tests governs economic liberty cases in Texas: An independent state test that looks for a “real and substantial” connection to the public good, the real version of the federal “rational basis” test that takes evidence seriously, or a caricature of the “rational basis” test advanced by the state’s attorney, under which facts do not matter.
You can listen for yourself, but from the podium, the prospects sounded good for the threaders and IJ. A favorable decision in this case will establish greater economic liberty protections for all Texas entrepreneurs subject to licensing laws.
An opinion is expected later this year.
Wesley Hottot is an IJ attorney.