How Laws Intended to Protect Black People May Impact Public Health Moving Forward
The debate about wearing masks to slow the spread of COVID-19 has been entirely too heated.
Some people have been outright refusing. Others, including many of my friends, are looking at what happened to flu this season and saying they’ll wear masks in flu season in the future.
Unfortunately, that may get them into some serious trouble. See, in communities and states across America it is, in fact, illegal to wear a mask.
Why Does the U.S. Have Anti-Mask Laws?
The anti-mask laws are aimed squarely at one specific target.
The Ku Klux Klan.
By making wearing a mask illegal the police, in theory, got a weapon to break up Klan gatherings and arrest them before they actually did something.
Around 15 states have some form of anti-mask law on the books, as do many counties and municipalities.
There are generally at least some exemptions. For example, there are exceptions for Halloween and for costume parties and masquerades. (I’ve never heard of a cosplayer being arrested for a mask, even in jurisdictions that outlaw masks).
And usually, there is a medical exemption of some kind. Also, the laws are worded such that the intent has to be to conceal your identity. Unfortunately, that’s hard to prove.
Unpacking Virginia’s Anti-Mask Law
So, here’s the text of Virginia’s law, unpacked.
It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.
So, this here would definitely include most of the face coverings we’ve been wearing. The “intent to conceal his identity” part means it’s not actually illegal to wear a mask for another reason, but let’s continue.
And if you wear a mask on somebody else’s property they have to give you consent in writing.
Now, the law has some exemptions. Let’s go through them.
- Wearing traditional holiday costumes. This is clearly mostly aimed at Halloween parties and the like.
- Engaged in professions, trades, employment or other activities and wearing protective masks which are deemed necessary for the physical safety of the wearer or other person. I.e., your mask to keep dust out when you chainsaw a tree is fine.
- Engaged in any bona fide theatrical production or masquerade ball. It could definitely be argued that cosplay is included here, and again, I’ve never seen a cosplayer harassed.
- Wearing a mask, hood or other device for bona fide medical reasons upon (a) the advice of a licensed physician or osteopath and carrying on hits person an affidavit from the physiphysician or osteopath specifying the medical necessity for wearing the device and the date on which the wearing of the device will no longer be necessary and providing a brief description of the device, or (b) the declaration of a disaster or state of emergency by the Governor in response to a public health emergency where the emergency declaration expressly waives this section, defines the mask appropriate for the emergency, and provides for the duration of the waiver.
That last combined with intent to conceal one’s identity makes it much more problematic, because it implies that if you do not have a doctor’s note or a public health emergency, it’s assumed you are trying to conceal your identity. And the doctor’s note has to be time limited (so, what about people who have been advised to wear a mask indefinitely? It’s rare, but it happens).
And you have to carry the doctor’s note with you.
This is a hugely burdensome medical exemption.
And the thing which makes Virginia’s mask law worse than pretty much anywhere else is the penalty.
It’s a Class 6 felony. Up to 5 years in jail.
Some Other Mask Law Examples
Let’s peek at a few other examples.
Washington, D.C. also has a mask law, which rather than saying with the intent to conceal, says “as to conceal the identity of the wearer.”
However, it’s actually a lot more limited. You have to have the intent to “deprive any person or class of persons of equal protection of the law” or be intending to intimidate people. Or committing a crime.
That’s rather better.
Let’s grab another one. This is from South Carolina. It makes it illegal to wear a mask or other device that conceals your identity, and exempts traditional costumes, protective equipment, theatrical productions and…gas masks. But it has absolutely no exemption for medical purposes.
The Practical Result
These laws have been used against Black Lives Matter protestors (including because they were wearing masks to, ya know, not get COVID.
While they were originally intended to protect Black people from violent racism, many Black people have been afraid to wear masks during the pandemic, contributing to higher infection rates in their communities.
And after the pandemic?
For example, when Northam ends the public health emergency, for me, wearing a mask goes from a mandate or at least a recommendation to…something I could get arrested and sent to jail for.
Except we all know that won’t happen. I’m white. They won’t bother me. They also have never bothered the Asian exchange students who wear masks all winter because that’s what Asian people do.
Instead, they will arrest Black folk trying to protect themselves, because it makes a very good excuse.
What Should We Do?
Now is the perfect time to get these laws taken off the books or, at the very least, amended to make “Reasonable concern about infectious disease” an exemption to these laws.
These laws never worked to protect Black people because half the time the people under the hoods were the cops.
They have only ever been used as an excuse to harass a Black person for having a scarf over their mouth and nose.
Please consider contacting the appropriate parties and asking them to remove the mask laws so that we can, if we choose, wear masks in future flu seasons without breaking the law…
…and so the police lose one of their excuses to harass Black people.