Fоllowing a bench trial, defendant, a licensed cosmetologist, was convicted of cutting the hair of a male person, contrary to § 55 of the Barber Licensing and Regulation Act of 1968, as amended, MCLA 338.1655; MSA 18.117(55). Defendant was fined $1000 and placed on probation for six months. On appeal to circuit court, his conviction was affirmed. Application for leave to appeal was granted by this Court as were the motions of the Michigan Cosmetology Association, Inc, and the Michigan State Barbers’ Association, Inc, to file an amicus curiae brief.
Section 3 of the Barber Licensing and Regula *66 tion Act permits a licensed barber to cut the hair of "any person”. MCLA 338.1603; MSA 18.117(3). However, § 2 of the cosmetology act permits a licensed cosmetologist to cut the hair of "any femalе”. It expressly does not authorize a cosmetologist to cut or clip the hair of any male person, unless he or she has first obtained a barber’s license. MCLA 338.752(b); MSA 18.132(b).
Defendant contends in this appeal that MCLA 338.752; MSA 18.132, insofar as it restricts cosmetologists to cutting the hair of female persons and precludes cosmetologists from cutting the hair of male persons, violates the United States Constitution. Defendant does not specify any provision of the Constitution. Amicus curiae Michigan Cosmetology Association argues that the statutes violate the due process and equal protection clauses of the Federal and state Constitutions.
Since the time of his arrest, defendant has timely and properly challenged the constitutionality of the licensing scheme referred to above which permits licensed barbers to cut the hair of any person, but which restricts licensed cosmetologists to the cutting of the hair of females only.
In Michigan, barbers have been licensed since 1899, but cosmetologists have been regulated only since 1931. In 1943 the State Barbers Board threatened licensed cosmetologists with prosecution for violation of the barbers act for their activity in cutting women’s hair without being registered as barbers. Thе controversy went to the Michigan Supreme Court in
Jeffs v Board of Examiners of Barbers,
"We conclude that it was not the intention of the legislature that a licensed cosmetologist should be considered guilty of a violation of the provisions of the barbers act merely because without a barber’s license she clips or trims hair as an incident to her work, if the clipping or trimming of hаir is of the type that cosmetologists customarily and ordinarily do and is performed on the same customer and on the same occasion as other work such as is customarily done by a cosmetologist.”
At the time the litigation began, the cosmetology act provided that it did not authorize "any registered cosmetologist to cut or clip the hair of any person unless he or she” had first obtained a barber’s license. In construing the words "cut or clip the hair of any person” the Court noted that practicing the occupation of a barber meant to "perform any work customarily done by barbers as such”.
" * * * that the cosmetologist who merely cuts or trims the hair of her lady customer as an incident to her work is not performing thе work customarily done by a barber.”
The Court accepted á distinction between, on the
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one hand, hair cutting and clipping such as is incidental to hair dressing and hair styling within the meaning of the cosmetology act and, on the other, hair cutting within the meaning of the barbers act. The latter occurred when hair cutting, "as practiced on the individual or on customers in general”, became "the important or main feature of the process, and not the incident thereto”.
"We consider that the legislature intended that a licensed cosmetologist shоuld be permitted to do all that cosmetologists customarily do in their regular and ordinary work but did not intend that a licensed cosmetologist should assume to do the work customarily and ordinarily done by a licensed barber.”
Thus, hair cutting incident to customary сosmetological work, i.e., hair dressing and hair styling, did not require a barber’s license.
As is evident from the opinion, the Court assumed that it was talking about cosmetologists cutting the hair of female persons only and that cosmetology involved the dressing, styling and cutting of women’s hair, not men’s hair.
1
The Legislature apparently assumed that allowing cosmetologists to cut the hair of any female would resolve the issue. It amended the cosmetology act to provide, as it presently does, that a licensеd
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cosmetologist may cut the hair of any
female
person, but that unless he or she has first obtained a barber’s license, a registered cosmetologist is not authorized to cut or clip the hair of any
male
person.
Thus has arisen the situation complained about in this case, namely, that licensed barbers cаn cut the hair of men and women, but that licensed cosmetologists can cut the hair of women customers only. We find the restriction to be not only anachronistic but unreasonable and unconstitutional as well. We hold that it violates the due proсess and equal protection clauses of the state and Federal Constitutions. US Const, Am XIV; Const 1963, art 1, §§ 2 and 17.
This same conclusion has been reached in several Federal court decisions where similar statutes have been reviewed. At issue in
Bolton v Texas Board of Barber Examiners,
"The Connecticut legislation is not less constitutionally repugnant because it permits barbers to serve malеs as well as females; the difference, if anything, only enhances and dramatizes the arbitrariness of the restriction imposed on hairdressers.”
Similar statutory restrictions have been found unconstitutional under state and Federal constitutions in a number of оther state court decisions as well.
Leetham v McGinn,
We do not consider this a sex discrimination case. As several of the above cases note, the classification here is not directly based on sex. The statute does not discriminate between barbers and cosmetologists on the basis of their sex. The question might be otherwise if male patrons were claiming that because of their sex they were being denied the haircutting services of cosmеtologists. Whether a cosmetologist has standing to assert the equal protection claim of a patron is a question we do not reach.
However, under both equal protection and due process analyses, the statutory restrictiоn challenged here fails to pass constitutional muster. Under an equal protection analysis the statutory classification or differentiation between similarly situated groups or persons must bear a rational relationship to a legitimate state purpose or be based upon a ground of difference having a fair and substantial relation to a legitimate object of the legislation.
Weber v Aetna Casualty & Surety Co,
The purpose of regulating both barbers and cosmetologists is to secure qualified practitioners and insure sanitary facilities. We are unable to perceive any rational or reasonable relation between these objectives and the restriction of the haircutting activity of cosmetologists to female persons. It certainly is not sanitation requirements. Both the cosmetology act and the barbers act prescribe sanitary measures and requirements. MCLA 338.762; MSA 18.142. MCLA 338.1643; MSA 18.117(43). Thus it is unneсessary to require cosmetologists to conform to the sanitary regulations of the barbers act. See Jeffs v Board of Examiners of Barbers, supra. Cosmetologists need only comply with the sanitary requirements of the cosmetology act, and not the barbers act, in order to cut wоmen’s hair. They seek only to render the samé services for men’s hair that they already provide for women’s hair. There is no showing that different sanitary measures are required to do so.
All hair is created equal — organically and chemically-aсcording to the unanimous trial testimony. Thus, no difference exists between the hair of males and females which would render one qualified to cut women’s hair unqualified to cut men’s hair. Although barbers are required to receive more practical training hours in hair cutting than cosmetologists are (compare Administrative Code 1973 AACS, R 338.2048 with Administrative Code . 1970-1971 AACS, R 338.2151), and although certain hair styles — e.g., the erstwhile "conventional male haircuts” — may require special tech *73 ñiques in which only barbers are required to be trained, cosmetologists are qualifiеd to cut hair. They need not meet the training requirements of the barbers act in order to cut women’s hair. They seek only to render the same services for men’s hair that they already provide for women’s hair. There is no showing that different training is required оr that cosmetologists are unqualified to do so.
Insofar as MCLA 338.752; MSA 18.132 prevents cosmetologists from rendering to male patrons the same haircutting services they may lawfully provide to female customers, it violates the equal protection аnd due process clauses of the state and Federal Constitutions.
Reversed. No costs.
Notes
To the Court, cosmetologist meant "women’s hair stylist”. E.g.,
"Barbering and dressing of women’s hair are both ancient occupations. It is made to appear in this case that the clipping and thinning of women’s hair has always constituted а part of hair dressing from the earliest times. Long before the word "cosmetology” was employed, hair dressers, now sometimes called stylists, thinned and snipped women’s hair without regulation by the State.”320 Mich 78 ,80.
"The first regulatory act applying to women’s hair stylists was enacted as the cosmetology act by Act No. 176, Pub. Acts 1931.”320 Mich 78 ,81.
Also, " * * * the cosmetologist who merely cuts or trims the hair of her lady customer * * * .”320 Mich 78 , 82.