After a federal judge ruled against the city of Everett for banning "bikini baristas" from wearing G-strings and pasties, Everett has decided to continue fighting against baristas' partial nudity.
In the opening brief of the city's Ninth Circuit appeal, attorneys for the city lay out how, exactly, they intend to topple a federal judge's injunction against the city from enforcing its new dress code.
The brief makes for good reading, as city attorneys stress—while trying to support a ban on butt cleavage—how easy it is to understand the terms of Everett's ban on “bottom one half of the anal cleft” and “more than one-half of the part of the female breast located below the top of the areola.” One of the reasons Judge Marsha Pechman blocked the ban was because she ruled those rules were too vague to stand up in court. She indicated that the argument that the ban limited freedom of expression on the basis of gender was also likely to succeed.
Attorneys for Everett say, however, that they really, really, really need this ban because existing ordinances against prostitution, lewdness, public masturbation, and sexual assault are too difficult to enforce. They claim that the ban addresses these "secondary harms," which they argue bikini barista stands allegedly encourage.
And as far as "anal cleft" goes, the city is arguing that "a person of ordinary intelligence can reasonably determine" what that term in the city dress code means.
"If the meaning of 'anal cleft' is not clear from the text, any possible confusion can be resolved by consulting a standard dictionary," attorneys argue in their brief.
For the record, this is how Everett defines "anal cleft":
“Anal” is defined as “of, relating to, or situated near the anus”. Webster’s Third New International Dictionary 76 (1993). “Cleft” is defined as “a space or opening made by or as if by splitting,” or “a hollow between ridges or protuberances,” for example “the anal ~ of the human body”. Id. at 421 (emphasis added). Thus, by reviewing the text of the Ordinance and consulting a dictionary, a person of ordinary intelligence could also determine that the “anal cleft” is a “space or opening made . . . as if by splitting” that is “situated near the anus.” Id. at 76, 421. There is only one possible portion of the human body that fits this description. And although the district court specifically quoted portions of the dictionary definitions of “anal” and “cleft” in its ruling, it stated it could not understand the two terms together.
But really, the more interesting part of the bikini baristas lawsuit deals with its First Amendment claim to freedom of expression. While the bikini baristas suing the city of Everett claim that their right to dress provocatively supports expression of body confidence and female empowerment, Everett is arguing that the way baristas dress is not "sufficiently expressive" enough to be protected by the First Amendment.
"In contrast, the wearing (or not wearing) of certain clothing may express broad concepts or ideas, but is generally not a sufficient to convey particularized messages subject to protection under the First Amendment," Everett lawyers argue.
They continue: "This is so even if the clothing may express general sentiments of individuality or empowerment, as Plaintiffs claim to do in this case."
It's noteworthy that Everett city attorneys didn't directly address bikini baristas' argument about female empowerment. They do take issue with federal Judge Marsha Pechman's suggestion that bikini baristas might express themselves through "[wearing] bikinis constructed of the bright pink ‘pussyhats’ worn by protesters during the Women’s March," by claiming that this example is hypothetical and specific. Still, they don't address the idea that showing breasts or anal cleft can be an act of radical expression, too.
So: In a society that has historically treated women as chattel, and thoroughly regulated women's dress, sexuality, and economic autonomy, are bikini baristas expressing a form of protest? That's up for the Ninth Circuit to decide.