After Kansas lawmakers failed to override a veto to change a law, a Shawnee County judge is allowing an anti-regulation lawsuit to continue over a challenge to occupational licensing for sugaring hair removal.
District Judge Teresa Watson on Nov. 8 denied a motion to dismiss in the case of Bryn Green v. the Kansas State Board of Cosmetology.
The lawsuit deals with government regulation and occupational licensing of sugaring, a centuries-old all-natural hair removal technique. At issue is whether Green, of Hays, must spend the time and money to go to school and get a cosmetology or esthetician license before she can start providing sugaring services, as is currently required by law.
“She asks this Court to declare unconstitutional and permanently enjoin the occupational licensing requirements imposed by the State of Kansas upon those who wish to perform sugaring,” Watson wrote. “Green asserts that the licensing requirements violate her right to earn a living free from unreasonable government restrictions, and her right to equal treatment under the law guaranteed by the Kansas Constitution.”
The issue also became political, with lawmakers taking up what started as a relatively noncontroversial bill framed as cutting through bureaucratic red tape to allow a young entrepreneur to open a business.
But the debate in the Statehouse later flared up, with opposition from industry professionals and some legislators, who contended that a consequence of the bill would be allowing unlicensed workers without background checks to remove genital hair from minors without parental consent.
Green, who is represented at no charge by Kansas Justice Institute, filed the lawsuit in Shawnee County District Court in October 2023. The board, which is represented by the attorney general’s office, filed a motion to dismiss in January. The sides have been awaiting a decision since a July 16 hearing.
“This is a great first-round victory for Bryn and puts her one-step closer to achieving her dream of starting a sugaring business,” said KJI litigation director Sam MacRoberts, in a statement on Tuesday. “People shouldn’t be forced to spend tens of thousands of dollars on irrelevant cosmetology school, and take irrelevant examinations, just to be able to use sugar, lemon juice, and water, to safely remove unwanted hair.”
Constitutional claims
survive motion to dismiss
Watson said that Green’s arguments are based on Sections 1, 2, 18 and 20 of the Kansas Constitution, which are all part of the Bill of Rights. Her opinion cited Kansas Supreme Court rulings, including recent ones on abortion, voting and redistricting.
Section 1 of the Bill of Rights states: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
“Green claims a Section 1 right to ‘earn an honest living, free from unreasonable government restrictions,'” Watson wrote. “No such right has been articulated by the Kansas courts, nor has it been specifically rejected.”
She declined to decide that issue at the motion to dismiss stage.
Some issues, like whether sugaring involves risks not present in threading or hair braiding, are “a fact-based question not amenable for determination on a motion to dismiss,” Watson wrote. The sides differ on whether strict scrutiny should be applied, as established in an abortion rights case.
“Even if Green’s claim may ultimately fail under a more thorough analysis, she has pled enough in her amended petition to survive the motion to dismiss,” Watson wrote, declining to dismiss the Section 2 claim on equal protection.
On the Section 18 claim, which implicates due process rights, Watson said that “the claim has been adequately pled; a decision on the merits must wait for another day.”
The Section 20 claim deals with unenumerated rights. Watson called it “an untried legal theory” and noted the “novelty of the claim,” but allowed the claim to continue.
“The nature and operation of unenumerated rights under the Kansas Constitution has been a topic of discussion in recent Kansas Supreme Court jurisprudence,” Watson wrote. “Green’s Section 20 claim under the facts alleged presents a question of first impression that is better decided at some point beyond a motion to dismiss.”
Kansas Legislature
didn’t override veto of
sugaring legislation
The lawsuit had been delayed earlier this year while the Legislature considered Senate Bill 434, which would have exempted sugaring hair removal from cosmetology regulations.
While the bill passed the Senate 38-1, it saw stiffer opposition in the House, where it passed 71-52, which was far short of a the supermajority needed to override a veto.
Rep. Barb Wasinger, R-Hays, was a top advocate of the occupational licensing legislation. Green is one of her constituents.
“We have got to allow Kansans to make a living, and that’s all Bryn Green wants to do,” Wasinger said during debate earlier this year.
Wasinger said it would cost between $16,000 and $20,000 for Green to go to cosmetology school, but “Bryn has a young child and cannot afford the time or money to go to school.” She said school would also mean learning other hair techniques that she has no intention of offering to clients.
“Allowing this to be operated outside of the government licensing barriers is essential for freedom in Kansas,” Wasinger said. “Sugaring is not relevant to the purview of cosmetology.”
Rep. Mike Amyx, D-Lawrence, who owns a barbershop and has hired licensed cosmetologists, argued, “There has to be protection for the public.” Rep. Jo Ella Hoye, D-Lenexa, said cosmetologists reported that “80% of sugaring clients are for pubic hair removal.”
Rep. Silas Miller, D-Wichita, who is a licensed cosmetologist and a licensed cosmetology instructor, called sugaring an advanced service. He said that without proper training, “It is very easy to cause harm when performing these services.”
“Students are taught hundreds of hours of foundational knowledge regarding infection control, proper implement sanitation, blood spill procedures, the science of skin and hair, etc., before they are event allowed to touch a real person,” Miller said.
Democratic Gov. Laura Kelly vetoed the bill, and lawmakers made no attempt to override the veto during veto session.
“I have serious concerns that deregulating sugaring – a hair removal technique that may be performed on minors – could lead to safety and sanitation problems,” Kelly said in a veto message. “We have a responsibility to protect Kansans – and this deregulation would threaten the health and safety of Kansans – particularly our children.”