The stink over ink

Two new efforts to legalize tattooing in Massachusetts

by Jason Gay

Massachusetts's thriving underground tattoo industry owes its existence to a simple fact: this is one of three states in the US where tattooing is still prohibited.

That's right, three. South Carolina and Oklahoma are the others. Not exactly an impressive club.

But now two efforts are under way to lift the state's tattoo ban. The first is a proposed law to legalize, license, and regulate the tattoo industry. The second is an ACLU-sponsored lawsuit that seeks to overturn the ban as a violation of the First Amendment protection of free expression.

"Tattooing is an art form," says Harvey Schwartz, the Boston attorney arguing the ACLU's case. "It communicates thoughts, ideas, and values, and that communication is protected by the First Amendment."

The tattoo lawsuit is the brainchild of two long-time friends: John Parkinson, a Martha's Vineyard resident who wants to be tattooed in his home state, and Stephan Lanphear, a Bronx-based tattoo artist who wants to practice his trade in Massachusetts. Parkinson and Lanphear are both plaintiffs in the lawsuit, which was filed in the state's Supreme Judicial Court.

"I really do believe that tattooing is a form of speech," Lanphear says. "I believe you can express speech through imagery, whether it's on a piece of paper or [in] a poem or song -- or on the skin. Tattooing is a way of expressing yourself."

To win their case, however, Lanphear and Parkinson must do more than just show that tattooing is a form of expression. They also need to prove that tattooing doesn't present a legitimate risk to public health. And here they face opposition from the Massachusetts Department of Public Health (DPH), which continues to support the state's 37-year-old prohibition on tattooing.

"It [tattooing] is not as potentially dangerous a procedure as a blood donation," says assistant DPH commissioner Nancy Ridley. "But you can say it's an invasive procedure in that needles do stick through the skin and there's potential for [infection]."

The state enacted its tattooing ban in 1962, when a hepatitis outbreak in New York heightened fears that practices such as tattooing could transmit infectious diseases. (Massachusetts outlawed the commercial sale of blood for the same reason.) The law stayed on the books after the hepatitis scare abated, and later, concerns over HIV transmission made health officials reluctant to lift the ban.

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Also, pushing ink and street skin

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But tattooing proponents point out that needle sterilization and other safety techniques have improved vastly in the three decades since the ban was established. Both Lanphear and Schwartz say that there hasn't been a single documented case linking the transmission of HIV to a tattoo. And accounts of other diseases' being transmitted through tattooing are dubious or reflect extraordinarily rare cases, according to Lanphear.

"People who are tattooing [legally] are professional tattoo artists," he says. "But they also get tattooed, and their concerns for their own health are as big as [their concerns] for their own clients. This is what the state doesn't realize. We work on ourselves and our own families, too."

The DPH's Ridley acknowledges that the potential for spreading disease through tattoos appears quite small -- and that the practice is less invasive than body piercing, which is legal. From the DPH's standpoint, however, the question is not so much whether diseases are being transmitted by tattooing as whether they can be. "It's still sticking something into the body," says Ridley, who also worries about the health effects of injecting ink into human skin.

Still, Ridley and other critics recognize that there's mounting public pressure to end the state ban. Twenty-five years ago, tattooing was limited mostly to certain groups of people: rockers, bikers, seamen. These days, tattoos are thoroughly mainstream. Men and women of virtually every age and profession are going under the needle for pieces of permanent body art. Indeed, Ridley says this growth has helped make the tattooing industry appear "more credible."

But it may also have upped the risk. Not every Massachusetts resident coveting a tattoo heads for the state border: many are opting to get tattooed illegally (see "Pushing Ink"). Though some of these artists are true pros, an alarming number aren't, says Lanphear. "Right now what you have in Massachusetts is a huge underground that is house-hopping, tattooing people in living rooms and kitchens without any regard for sterilization procedures," he says. "You have a bunch of people wandering around the state of Massachusetts without any kind of access to [safety] information."

The tattoo underground is one reason State Representative David Tuttle (R-Barre) has filed a bill seeking to license and regulate the tattoo trade. "This is a public-health and safety issue," Tuttle says, borrowing a page from the DPH's playbook. "Tattooing is being done underground in house parties, and there's no way to regulate and inspect them."

Legalizing tattooing would take the practice out of kitchens and into a more controlled, sanitized environment, says Tuttle, who considers the current ban "archaic." There's also an economic argument: more money would stay in Massachusetts, and the state would gain tax revenue from legal tattoo parlors.

If Tuttle's law passed, Massachusetts's tattoo trade would be regulated the way Rhode Island's is. There, tattoo artists must submit to a state-performed test in which they are asked about sterilization techniques and other procedures. They must even do a "practice" tattoo on a sheet of paper. Each Rhode Island tattoo establishment is also subject to an on-site inspection. (Though Rhode Island's tattoo trade is state monitored, Tuttle says his law would leave monitoring responsibility to local municipalities, in order to take the burden off the state DPH.)

Meanwhile, Lanphear and Parkinson's lawsuit presses on in court. If they win (the case is expected to be heard before the end of the year), it would make the current state ban null and void, and would make tattooing a legal activity. Tuttle's bill would still have to pass the legislature in order for the profession to be regulated.

It remains to be seen how receptive the tattooing community will be to all this bureaucratic and courtroom wrangling. After all, tattooing is an activity with deep roots in society's underground -- some people are drawn to it precisely because it's considered dangerous and disturbing. Making tattooing a legitimate, regulated business might eliminate that appeal. (Not to mention eliminating black-market profits. Since his lawsuit was filed, Lanphear says, he's gotten grief from artists who are "making a killing" illegally tattooing people in Massachusetts.)

But Lanphear argues that the phenomenal popularity of tattooing has already taken away a lot of its outlaw cachet. "People like the idea of [tattooing] being some kind of subculture," he says. "And that's the problem facing the tattoo community right now. It's become so widely acceptable that the mystique, the subculture, is gone."

Jason Gay can be reached at jgay[a]phx.com.