The place of tattoos, beards and hairstyles in discrimination law

Traditional rationales for discrimination law often focus on the immutability of characteristics. Pursuant to these rationales, discrimination should be prohibited where it relates to a characteristic that a person cannot change, or where the characteristic is so connected to a person’s identity that they should not be forced to change. Thus, discrimination is wrongful where the characteristic is an ‘accident of birth’. But the reach of discrimination laws has expanded far beyond these traditional inceptions. Now discrimination is prohibited on a range of grounds, some immutable and others mutable. An example is the prohibition of discrimination on the grounds of ‘physical features’ which prohibits discrimination on the basis of both immutable characteristics such as height and weight and other mutable characteristics such as tattoos, grooming standards, and hairstyles. This article considers the nature of discrimination on the basis of such mutable characteristics and if the prohibition on such discrimination is consistent with the current normative theories of discrimination law. It argues that rather conceiving discrimination on the basis of tattoos and hairstyles as an independent ground for protection, it is better understood as a manifestation of other, and often intersectional disadvantage based upon race, gender, disability and age.