Can traditional hair practices be legally protected in contemporary society?

Roots

Consider the deep roots of a great oak, its branches reaching skyward, its roots delving into the earth, drawing sustenance from ages past. So too, is the heritage of textured hair for Black and mixed-race communities—a living, breathing arboreal archive of identity, resistance, and artistry. Each strand holds a history, a narrative passed down through generations, often silently, sometimes through the gentle cadence of a comb, or the steady hands shaping a style. It is within this rich, ancestral context that we approach a pressing query of our contemporary world ❉ can traditional hair practices, so intimately connected to cultural existence, find sanctuary and recognition under the canopy of modern law?

This query extends beyond mere aesthetics. It touches upon fundamental understandings of self, community, and the persistent echoes of ancestral wisdom. The very fiber of textured hair, with its unique anatomical architecture, has historically been both a marker of cultural affiliation and a target for oppression.

From ancient African civilizations where hairstyles denoted status, age, marital state, or tribal identity, to the forced shaving of heads during the transatlantic slave trade—a brutal attempt to strip away identity and spiritual connection—hair has always been political (Byrd & Tharps, 2014). Understanding the inherent biological structure of coily, curly, and kinky hair textures, intertwined with the historical lexicon used to categorize and often devalue them, provides an essential foundation for exploring their potential legal safeguarding.

What is the Elemental Composition of Textured Hair?

The biological makeup of textured hair differs significantly from straight hair, a fact often overlooked in broad, Eurocentric beauty standards. A strand of hair, regardless of its texture, primarily consists of keratin, a protein. However, the distribution of this keratin, along with the shape of the hair follicle and the angle at which it emerges from the scalp, dictates the hair’s curl pattern. For textured hair, the follicle is typically elliptical or flat, causing the hair shaft to grow in a curvilinear, often helical, path.

This unique structure influences how moisture travels along the strand, how light reflects from it, and its inherent strength and fragility. The cuticle, the outermost protective layer, tends to be more open on textured hair, which can make it prone to moisture loss and breakage if not cared for with specific, mindful practices that have been refined over millennia within heritage communities.

This biological distinctiveness meant that ancestral communities developed care methods profoundly aligned with their hair’s particular needs. These were not random acts, but responses to elemental biology, refined by observation and passed down as a precious communal wisdom. The selection of specific plant oils, the invention of protective styling methods like braiding or twisting, and the understanding of a strand’s vulnerabilities were all informed by an intuitive, empirical science born of living closely with the hair that sprung from their very being.

How does the Lexicon of Textured Hair Reflect Heritage?

The language surrounding textured hair is as rich and varied as the hair itself, deeply infused with the experiences and knowledge of Black and mixed-race peoples. Unfortunately, this lexicon has also been historically weaponized. Terms like “good hair” and “bad hair,” remnants of a colonial mindset, reflect a hierarchy rooted in proximity to European hair textures, causing immense psychological harm (Byrd & Tharps, 2014). Yet, within communities, a distinct and empowering vocabulary has persisted and grown, celebrating the diversity of curls, coils, and kinks.

• Kinky Hair ❉ Often used to describe very tightly coiled strands, sometimes forming Z-patterns, with a rich history of being devalued yet reclaimed as a symbol of strength and heritage.
• Coily Hair ❉ Refers to hair that forms tight coils, ranging from pencil-sized to straw-sized curls, celebrated for its unique spring and volume.
• Braids ❉ A vast category of intertwined hair, from micro-braids to box braids and cornrows, each with specific cultural and historical significance, often serving as protective styles or markers of identity.
• Locs ❉ Formed by the deliberate locking of hair strands, a practice with deep spiritual and historical roots in various African cultures and beyond, symbolizing natural purity and spiritual alignment.
• Afro ❉ A voluminous style worn naturally, a powerful symbol of Black liberation and identity during the civil rights movements of the 20th century.

The movement to reclaim and valorize these terms, to assert the beauty and professionalism of textured hair, marks a powerful act of cultural self-determination. This shift in language is not merely semantic; it represents a profound realignment with ancestral pride, challenging inherited biases, and asserting the inherent dignity of Black and mixed-race hair expressions. The legal protection of these practices would, in a sense, codify this reclamation, recognizing the cultural harm inflicted by historical discrimination.

Ritual

The realm of ritual, when applied to hair, speaks to the living traditions, the tender gestures, and the communal bonds that have always surrounded textured hair care. These are not static museum pieces but dynamic practices, passed from elder to child, salon chair to salon chair, continually adapting yet retaining a recognizable ancestral core. The question of legal protection for these deeply ingrained practices takes us to the heart of what it means to preserve living heritage in a rapidly evolving legal landscape. Can the delicate, often unspoken wisdom of these hair rituals truly be codified and defended within systems built on different cultural assumptions?

Throughout history, particularly within the African diaspora, styling and caring for textured hair has been a communal affair, a moment of intimacy and knowledge exchange (Jacobs-Huey, 2006). These acts transcended mere grooming; they were expressions of kinship, ceremonies of beautification, and quiet acts of resilience against prevailing norms that sought to diminish Black identity. The very act of braiding a child’s hair, or oiling a loved one’s scalp, carried the weight of generations—a silent language of care, continuity, and cultural affirmation. The tools used, from simple combs crafted from natural materials to specific preparations of herbs and oils, were extensions of this ancestral wisdom.

Can Ancestral Styling Techniques Be Property?

The protective styling techniques so central to textured hair care—cornrows, twists, locs—are far more than fashion statements. They emerged from a need to shield hair from environmental damage, to manage its unique properties, and often, to convey social messages (Byrd & Tharps, 2014). These techniques, refined over centuries, represent a sophisticated form of ancestral technology, a collective intellectual property of communities.

The challenge for legal frameworks resides in recognizing this communal ownership and the intangible nature of these practices. Western intellectual property systems, predominantly rooted in individual authorship and fixed, tangible creations, often struggle to accommodate the fluid, intergenerational transmission of traditional knowledge (WIPO, 2023).

Legal protection for traditional hair practices aims to safeguard not just styles, but the deep cultural wisdom and identity entwined within each strand and every ritual of care.

Consider the historical example of Bo Derek’s cornrows in the film “10.” While widely seen as a fashion statement, this instance ignited a significant conversation about cultural appropriation. A style deeply rooted in African heritage and a symbol of identity was detached from its origins and presented as a novel trend (Byrd & Tharps, 2014). This highlights a core tension ❉ when a traditional practice becomes mainstream, how can its original cultural context and the rights of its originators be honored and protected?

Does Discrimination Against Hair Texture Require Legal Intervention?

The answer here is a resounding yes. For generations, individuals with textured hair, particularly Black women, have faced pervasive discrimination in educational and professional settings based solely on their natural hairstyles (Greene, 2012). This discrimination is not merely about personal preference; it is a direct consequence of systemic racism that deems Eurocentric beauty standards as the default for professionalism (Mbilishaka et al. 2020).

A powerful modern legal intervention addressing this issue is the CROWN Act, an acronym for “Creating a Respectful and Open World for Natural Hair.” First introduced in California in 2019, this legislation prohibits discrimination based on hair texture and protective hairstyles associated with race, such as afros, braids, locs, and twists, in workplaces and public schools (Donahoo & Smith, 2019). The Act extends the definition of race to include hair texture and protective styles, thereby closing a loophole in existing anti-discrimination laws that often failed to protect against hair bias (EPI, 2023).

The need for such legislation is starkly illustrated by statistics. Research indicates that Black women are 2.5 times more likely to be perceived as unprofessional because of their hair, with 41% altering their hair from curly to straight for job interviews, and over half believing straight hair is a requirement for such occasions (CROWN 2023 Research Study). These numbers paint a vivid picture of the immense pressure to conform, a pressure directly connected to historical efforts to suppress Black identity. The CROWN Act represents a vital step towards affirming the right to cultural expression without fear of professional or educational reprisal.

It acknowledges that hair is not simply a biological feature; it is a profound declaration of identity, heritage, and ancestry (EPI, 2023). The widespread adoption of the CROWN Act across various states signals a growing recognition within the legal system that protecting these practices is essential for true equity. As of September 2024, twenty-seven states have enacted some form of the CROWN Act, although federal passage remains in progress (George, 2024).

Relay

The legal journey to protect traditional hair practices involves a complex interplay of existing intellectual property frameworks, human rights declarations, and the evolving concept of traditional knowledge. This movement aims to create a relay of understanding, passing the ancestral flame of cultural practice into the formal structures of law, ensuring its light continues to shine for future generations. The challenge lies in harmonizing Western legal constructs, which often prize individual ownership and codification, with Indigenous knowledge systems, which typically honor collective, intergenerational ownership and oral transmission (WIPO, 2023).

For Indigenous communities worldwide, their traditional knowledge (TK) is not static. It represents a living body of wisdom, skills, and practices developed over millennia, deeply intertwined with their spiritual beliefs and cultural distinctiveness (Riley, 2024). This includes, but extends far beyond, hair practices, covering medicinal plant uses, agricultural techniques, art, music, and oral traditions. The ongoing discussion within international bodies like the World Intellectual Property Organization (WIPO) and UNESCO reflects a growing, though still incomplete, global recognition of the need to protect this communal heritage from exploitation and misappropriation (WIPO, 2023).

Can Intellectual Property Frameworks Safeguard Collective Heritage?

Intellectual property (IP) law, with its categories of patents, copyrights, and trademarks, was not originally designed to protect collective, continuously evolving traditional knowledge. Patents shield novel inventions, copyrights protect original artistic works, and trademarks protect branding. Traditional hair practices, as expressions of collective cultural identity, rarely fit neatly into these individualistic boxes (Zografos, 2016).

• The Challenge of Authorship ❉ Copyright requires an identifiable author or creator. Traditional hair patterns or care rituals are often of unknown origin, developed and refined by countless hands over generations.
• The Issue of Novelty ❉ Patent law demands novelty and non-obviousness. Traditional knowledge is ancient, often publicly known within its community, making it difficult to claim as a new invention in a modern legal sense.
• The Scope of Protection ❉ Even if a traditional style could be copyrighted, it would protect only the specific artistic expression, not the underlying cultural knowledge or the practice itself. A different community’s variation, or even an individual’s interpretation, might circumvent the protection.

This inherent mismatch has led to calls for Sui Generis systems—meaning unique, custom-made legal frameworks specifically designed for traditional knowledge and cultural expressions (WIPO, 2023). Such systems aim to recognize collective ownership, provide protection indefinitely (as long as the community practices the tradition), and ensure that benefits arising from the commercialization of traditional knowledge are shared equitably with the originating communities. Nepal, for instance, faces challenges with biopiracy of its traditional plant knowledge, underscoring the urgency for such tailored legal measures (Khanal & Karki, 2024). These legal discussions extend to traditional hair practices, where the patterns, their names, and their historical context could potentially be registered or recognized as collective cultural property.

The global pursuit of legal recognition for traditional cultural expressions highlights a fundamental tension between Western legal systems and ancestral wisdom, calling for innovative frameworks to protect collective heritage.

How does the UNESCO Convention on Intangible Cultural Heritage Apply?

The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) represents a significant international effort to acknowledge and protect living cultural practices. This includes oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature, and traditional craftsmanship (UNESCO, 2003). Many traditional hair practices—from the intricate braiding techniques of West Africa to the ceremonial hair adornments of various Indigenous peoples—fit squarely within these categories.

The Convention encourages states to create inventories of their intangible cultural heritage and to develop safeguarding measures, including legal protections. While it does not create individual property rights, it fosters a global understanding of cultural significance and can lay the groundwork for national laws that protect traditional practices. For instance, a country could list a particular hair braiding tradition as part of its intangible cultural heritage, which would then encourage domestic legal measures to protect it from misuse or discrimination. The principle of prior informed consent, where communities must agree to the use of their knowledge, is a central tenet of discussions around traditional knowledge protection and aligns with the spirit of the UNESCO Convention (Khanal & Karki, 2024).

The struggle against hair discrimination, embodied by the CROWN Act in the United States, stands as a testament to the fact that cultural practices, even those as seemingly personal as hair styling, carry profound societal weight. It demonstrates a recognition that the “good hair/bad hair” binary was a tool of racial subjugation, and that protecting natural textured hair is a matter of civil rights and cultural preservation. This legislative push is a local manifestation of the broader global movement to protect traditional knowledge and cultural expressions.

Reflection

As the sun sets on our exploration of legal protection for traditional hair practices, we are left with a shimmering afterglow—a deep appreciation for the enduring legacy held within each coil, kink, and curl. The journey to legally protect textured hair heritage is a profound declaration, a recognition that history lives not only in textbooks but also in the tangible and intangible expressions of culture. It is a testament to the resilience of Black and mixed-race communities, whose hair, so often a site of struggle, now stands as a beacon of beauty and a call for justice.

The legal landscape, for all its complexities, is slowly adapting, reflecting a shift in collective consciousness. The movement to protect hair practices is not merely about preventing discrimination or asserting intellectual property rights; it is about honoring a living archive, safeguarding the echoes of ancestral wisdom that ripple through time. It is about acknowledging that the hands that braid, the oils that nourish, and the styles that adorn are all part of a continuous, vital cultural practice. For Roothea, this ongoing work is a sacred task, a contribution to a global library where every strand tells a story, and every story is valued, protected, and celebrated.