In an otherwise thoughtful opinion by Judge Ricardo Martinez in the Western District of Washington, the court addressed an Everett city ordinance designed to prohibit “bikini barista bars,” a thing that I didn’t know existed until today, and to establish a dress code for “quick service facilities.”
Plaintiffs Jovanna Edge and others are or were employed by “bikini barista stands.” Plaintiffs challenge the constitutionality of two ordinances enacted by the City of Everett, Ordinance No. 3559-17 (the “Lewd Conduct Ordinance”) and Ordinance No. 3560-17 (the “Dress Code Ordinance”). The Lewd Conduct Ordinance expanded the definition of a lewd act to include an exposure of “more than one-half of the part of the female breast located below the top of the areola,” “the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast” and created the new crime of Facilitating Lewd Conduct.
The Dress Code Ordinance requires all employees, owners, and operators of “Quick-Service Facilities” to wear clothing that covers “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).” The Ordinance defines Quick Service Facilities as “coffee stands, fast food restaurants, delis, food trucks, and coffee shops” in addition to all other drive-through restaurants. Violations are deemed civil infractions. To ensure that stand owners are motivated to enforce the dress code, the City instituted a $250 fine for first time offenders. Id. Repeat offenders face increased fines and risk losing their business licenses.
So far, a fairly pedestrian case, a sales concept based on sexy women and a city that wants to stop it as it offends the sensibilities of some citizens. With a few exceptions, these laws pass muster and the nipple remains unfree, the law accepting that the public display of the female breast is not the same as the male breast, equality e-shmality. That’s the law.
But Judge Martinez goes on to include a very interesting component to his rationale.
Some of this evidence is strong, and some of it weak. The City of Everett clearly has an
interest in reducing secondary effects of the bikini barista stands like crime, lewd conduct, and exploitation. As stated above, the record shows that this business model has been linked to at least some incidents of prostitution, lewd conduct, and sexual assault. However, it does not necessarily follow that the Dress Code Ordinance “will further the City’s goal of preventing these harms by establishing minimum dress requirements and making it easier to detect violations and hold owners accountable,” as stated by the City. The means by
which the City is attempting to reduce crime and lewd conduct—a dress code for drive-thrus
that bans midriffs and scoop back shirts—is so broad as to veer from being “substantially
related” to just “related.”
Do baristas in bikinis really cause crime? This is invariably the sort of explanation local governments use to justify their otherwise dubious ordinances, since preventing crime is undeniably an important governmental purpose. But seeing a woman in a bikini makes a man lose his mind and rape women? Expose his penis? Rob banks to buy coffee from the bikini-clad baristas? This sounds about as credible as Reefer Madness. But Judge Martinez goes on.
The Court is particularly swayed by Dr. Roberts’* observations that this Ordinance poses an unreasonable risk of demeaning enforcement. Assuming the owners of bikini barista stands are unable or unwilling to enforce this dress code, at some point law enforcement will be asked to measure exposure of skin by some method. This “encourage[s] a humiliating, intrusive, and demoralizing search on women, disempowering them and stripping them of their freedom.”
Is there enforcement of any ordinance that isn’t intrusive? Body cavity searches come to mind. Road-side blood draws, too, not that the ones done in hospitals without consent are any less intrusive. But Dr. Roberts, whose academic field of study is psychology, not law, such that her focus would likely be more about how the bikini baristas felt about being the law being enforced against them, provided expert testimony that this would be “humiliating, intrusive and demoralizing” to women, and would disempower them and strip them of their freedom.
That’s what laws do. They disempower people and strip them of their freedom. That’s the point of laws regulating conduct. But is it different where, as argued here, the target of a facially neutral law but one that was openly directed at ridding Everett of the blight of bikini barista bars, demoralizes women?
Is that argument is sound, would it not then mean that laws targeting conduct primarily engaged in by men, which are most criminal laws, are a violation of the Equal Protection Clause because they “demoralize” men? These laws disempower them, often with a club or tazer, and strip them of their freedom, whether by cuffs or bars, and men can’t be feelings too good about themselves for it. So why is that not the same as the enforcement of a dress code that might make women, specifically, feel demoralized?
This isn’t to say that the dress code involved here was a sound one, going far beyond the normal sensibilities of the community into prohibiting shirts that showed bar midriff and scoop backs, rather ordinary wear for women of upstanding character. But had this ordinance otherwise not been vague and overbroad, would it nonetheless violate equal protection by doing to women what laws have been doing to men all along without a single judge shedding a tear for a demoralized defendant?
*That would be Dr. Tomi-Ann Roberts, professor of psychology and Chair of the Psychology Department at Colorado College in Colorado Springs.
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