SEATTLE (CN) – Any person of ordinary intelligence should know what “anal cleft” means, an attorney for a Washington state city told a Ninth Circuit panel Monday, arguing the city’s new dress code for scantily clad bikini baristas is not unconstitutionally vague and should be allowed to stand.
The city of Everett approved two ordinances requiring employees of “quick-service” restaurants to wear at least shorts and a tank top, and restricting how much of a person’s anal cleft or woman’s breast can be publicly exposed.
U.S. District Judge Marsha Pechman approved a preliminary injunction on enforcement of the dress code while it’s litigated, finding the rules are likely unconstitutional.
“The court finds that the citywide ordinance and the dress code ordinance are likely void for vagueness under the 14th Amendment. The term ‘bottom one-half of the anal cleft’ is not well-defined or reasonably understandable, and the ordinances otherwise fail to provide clear guidance and raise risks of arbitrary enforcement. The court finds that the dress code ordinance likely violates plaintiffs’ right to free expression under the First Amendment,” Pechman wrote in the injunction order.
Everett city attorney Ramsey Ramerman told a three-judge appellate panel on Monday “anal cleft is the same phrase used throughout the country in different jurisdictions” and the meaning is not vague.
U.S. Circuit Judge Morgan Christen said the ordinance states the bottom one half of the anal cleft can’t be exposed.
“How can law enforcement determine where the bottom half is and measure it?” she asked.
Christen said bikini-wearing coffee servers don’t “seem outlandish” because things have evolved since she was in school and had to follow a dress code banning girls from wearing pants.
Ramerman countered the city has authority to adopt the dress code to combat illegal sexual conduct, including prostitution, that was happening at the stands. And he said Pechman also erred in finding the bikini baristas were engaging in First Amendment expressive conduct.
In order to qualify for expressive conduct, the message intended must be the same as the message received, he said.
U.S. Circuit Judge Sandra Ikuta asked attorney Melinda Ebelhar, representing the owner of a chain of bikini barista stands, why the clothing should be considered expressive conduct.
Ebelhar said numerous bikini baristas filed declarations saying they felt empowered as women and were making a body-positivity statement.
“The message is this is not your mother’s coffee house,” Ebelhar said.
Ikuta, however, said the message seemed more like “I am sexually available.”
Ebelhar disagreed and asked that the injunction on enforcement remain in place while the lawsuit over the dress code proceeds.
U.S. Court of International Trade Judge Jennifer Choe-Groves, sitting by designation, rounded out the panel. The judges did not indicate when they would rule.