Bikini Baristas Win Lawsuit Over Unconstitutional Dress Code
Plus: Fiona Apple fights for court transparency, ACLU asks SCOTUS to consider boycott ban, and more...
A federal court says a city's dress code for scantily clad coffee servers is unconstitutional. The judge ruled that by targeting women's attire, the dress code violates the Equal Protection Clause of the U.S. Constitution. But the law does not violate the First Amendment, he ruled. Nor does criminalizing the baring of female breasts but not male breasts count as an unconstitutional violation.
The case comes out of Everett, Washington, where drive-up shacks featuring "bikini baristas" are popular.
In 2017, Everett passed a law prohibiting quick service food and drink peddlers from showing off certain body parts, including their stomachs, backs below the shoulder blades, and "top three inches of the legs below the buttocks." The city didn't even pretend to tie the law to food safety, instead citing concerns about potential exploitation of women and "adverse impacts upon minors."
A group of bikini baristas working sued, calling it a matter of women's rights.
In addition to instituting a dress code for baristas, the law expanded the city's definition of lewd conduct to include any exposure of "more than one-half of the part of the female breast located below the top of the areola," the "bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast," and created a new crime of facilitating lewd conduct, to target the owners of bikini barista establishments.
In December 2017, a U.S. District judge said the city could not enforce the law as the case was playing out. The city appealed, and the U.S. Court of Appeals for the Ninth Circuit Court reversed course, holding in 2019 that the lower court had been wrong. "The Ninth Circuit rejected the argument that the law violates the baristas' First Amendment right to free expression and lifted the injunction, meaning the ban is back on while the lawsuit proceeds in district court," noted Baylen Linnekin in Reason at the time.
Now, a judge has finally ruled on the merits of the case. In an October 19 opinion, U.S. District Court Judge Ricardo Martinez held that Everett's dress code is unconstitutional because it violates the Equal Protection Clause of the Constitution.
Martinez rejected the baristas' argument that the dress code violated their right to free expression. And he let stand the city's expanded definition of lewd conduct and criminalization of "facilitating lewd conduct," ruling OK to the city's criminalization of exposure or touching of women's breasts but not of men's breasts:
Although public attitudes about gender and sexuality are constantly changing and evolving, there is simply no basis on this record to conclude that the public exposure of female breasts no longer violates the community standards of the City of Everett, or that protecting those public sensibilities is not an important government interest.
The Court finds that the City of Everett has met its burden of providing an exceedingly persuasive justification for treating the public exposure of bare breasts by females and males differently in the Ordinance, and that this is substantially related to the important governmental interest of protecting the public sensibilities of the City of Everett.
But Martinez rejected the dress code law, saying it violated the Constitution's Equal Protection Clause because it "clearly treats women differently than men by banning a wide variety of women's clothing."
"The record shows this Ordinance was passed in part to have an adverse impact on female workers at bikini barista stands," writes Martinez:
The Ordinance's ostensibly neutral classification is also an obvious pretext for
discrimination based on the law's application. Plaintiffs' expert Dr. Roberts points out that the Dress Code Ordinance prohibits clothing typically worn by women rather than men, including mid-riff and scoop-back shirts, as well as bikinis. There is
evidence in the record that the bikini barista profession, clearly a target of the Ordinance, is entirely or almost entirely female. It is difficult to imagine how this Ordinance would be equally applied to men and women in practice. It appears designed to ban not just "pasties and g-strings" or bikinis, but a wide range of women's clothing.
Fiona Apple fights for court transparency:
Fiona Apple has a story for you. And it's incredible. Asked me to share.
She's become an avid, trained Court Watcher. Her observations helped people jailed pretrial file a civil rights lawsuit. Then came the retaliation. Shut off her access to court.
A video story in 8 parts: pic.twitter.com/uhpgOLWFS6
— Scott Hechinger (@ScottHech) October 24, 2022
The American Civil Liberties Union (ACLU) is asking the Supreme Court to weigh in on a boycott ban. The ACLU and the ACLU of Arkansas "filed a petition with the U.S. Supreme Court urging the court to review a decision from the U.S. Court of Appeals for the Eighth Circuit holding that the First Amendment does not fully protect the right to boycott," ABC 7 Arkansas reports.
According to ACLU officials, the petition comes in the Arkansas Times LP v. Waldrip lawsuit; a lawsuit filed by the ACLU and ACLU of Arkansas challenging an Arkansas state law that requires government contractors to pledge not to boycott Israel or reduce their fees by 20 percent.
The lawsuit was filed on behalf of the Arkansas Times LP, which was penalized by the government after it refused to certify that it is not boycotting Israel or Israel-controlled territories, the union said.
More on the Arkansas law in question and the legal challenge surrounding it here.
Just in: Clarence Thomas issues a temporary order preventing Lindsey Graham from having to testify in the Georgia election-interference probe. This is not a ruling on the merits -- it is an "administrative stay" while further briefing at SCOTUS continues. https://t.co/RCwHYgP8KM pic.twitter.com/OKDWutmS8h
— SCOTUSblog (@SCOTUSblog) October 24, 2022
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