Des Moines, Iowa — Today the ACLU of Iowa sent letters to city council members in Dyersville, Pella, and Waukee, advising them that their ordinances including “female impersonators" and "male impersonators" as adult entertainment are unconstitutional and must be changed.
The unconstitutional zoning ordinances classify "female impersonators," "male impersonators," "go-go dancers," and "similar entertainers" as prohibited adult entertainment.
These ordinances regulating drag shows through zoning are important because in these and other communities, "adult entertainment" has special zoning restrictions. Adult entertainment venues that feature erotic or sexually explicit performances are highly restricted on where they can be located, sometimes must have special licenses, and may be subject to various fees and fines.
"These communities have ordinances that specifically classify all drag entertainment as adult entertainment," said ACLU Staff Attorney Shefali Aurora.
Aurora said that is unconstitutional for at least three reasons:
- It violates free speech as an unjustifiable content restriction.
- It's overbroad because it includes all drag shows, regardless of whether or not they feature "erotic or sexually explicit" content, as "adult" expression.
- It violates equal protection in targeting the LGBTQ community.
"These ordinances are being used to target drag, which has become specifically linked with the LGBTQ community, and drag performers often perform in bars and spaces that specifically cater to that community," Aurora said. "These ordinances simply perpetuate a history of hostility towards the LGBTQ community."
If the city were to enforce the ordinances as written, even a school play putting on a production of Shakespeare's "Twelfth Night," which includes a woman disguised as a man, would violate the ordinance. A female comedian with short hair wearing a suit and tie could be categorized as a "male impersonator." Many popular movies shown at a local theater would be in violation. A drag queen reading a book at story time in a local library would violate these ordinances as well.
Drag is not by definition "adult" entertainment. It typically features fully-clothed performers singing, dancing, and performing comedy.
For example, in Des Moines drag performances have become a part of the annual CelebrAsian festival, which is a family-friendly drag event that celebrates Asian cultures. At this festival, the drag performance is attended by people of all ages and showcases culture and tradition.
"These outdated ordinances go beyond prohibiting objectionable or obscene conduct and instead are obvious violations of our First Amendment right to freedom of expression and right to equal protection under the law," said Aurora.
Eagle Grove Ordinance the First Amended
Eagle Grove had an unconstitutional ordinance that was the first one the ACLU worked to get amended. In 2021, a local bar, Dona Martha's Office, had a drag show that the owner says attracted thousands of people, so many that the bar ran out of both beer and liquor because of the overwhelmingly positive showing.
The owner, Martha Kaiser, scheduled a second drag show, but city officials cited the ordinance and told her she couldn't have another one.
"It's my bar and I should be able to do what I want in it, as long as it's not illegal," Kaiser said. "A drag show is not illegal. It's free speech and expressing who you are. It's my bar and I should be able to support who I want. Everyone is welcome here."
After the ACLU learned of the Eagle Grove ordinance and the canceled second show, it contacted legal counsel for the city to outline its concerns. To its credit, Eagle Grove amended its ordinance.
One of the performers who was supposed to perform the night of the canceled performance is Loretta Stone, the stage name of a Des Moines performer.
"Too many people don't understand drag," said Stone, who trained at the American Academy of Dramatic Arts in New York. "We're here to provide joy, to entertain and make you laugh, and maybe make you just forget about your life for an hour and a half."
Stone said drag performers have a variety of styles. "There are comedy queens, goth queens, those that do death drops, all different kinds. And there are the kinds who do story hours at libraries, in appropriate dress."
Other Cities' Ordinances Targeted
Besides Eagle Grove, the ACLU has reached other communities with similar ordinances, and three are in the process of changing them: Knoxville, Newton, and Grinnell. To their credit, once contacted, city officials in those communities agreed to begin work on amending their ordinances so that they are no longer unconstitutional.
Knoxville's anti-drag ordinance is section 9-1-3(H). Grinnell's is section 125.01(1). Newton's is section 158.003(B).
However, three others have not yet indicated that they will change their unconstitutional ordinances: Dyersville, Pella, and Waukee:
Dyersville's ordinance section 127.02(1)(G), which classifies as an "adult entertainment cabaret" any "establishment that is licensed to serve food and/or alcoholic beverages, which features topless dancers, strippers, male or female impersonators, or similar entertainers." (Update: In August 2023, Dyersville changed their ordinance.)
Pella's ordinance section 65.24(1)(A)((2))(e), which classifies as an "adult cabaret" any venue that "features go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers."
Waukee's ordinance section 165.02(4)(E), which has the same language as Pella's. After the letter was sent, Waukee city officials said they do not restrict drag peformances and are reevaluating the ordinance.
In addition to the language prohibiting drag, the restrictions on "go-go dancers" and "similar entertainers" are clearly outdated, vague, and violate free speech. For example, just about any movie theater that has a James Bond movie from the 1960s could be violating these ordinances covering go-go dancers," Aurora said.
The ACLU is informing all the cities that they must remove the references to "male impersonators," “female impersonators," "go-go dancers," and "similar entertainers."
It is also asking the cities to inform the ACLU within 14 days if they will move forward in removing all the problematic wording from their ordinances.
Stone, who performs all over the state, said it's important that towns get rid of these anti-drag ordinances.
"Shutting down drag performances is shutting down important free speech," Stone said. "Drag is inherently protest. Just stepping out of my home in a body that is in an outfit that is not in line with what I have been told I am, that is protest. For that, I could face hateful comments. I could face violence. I've had things thrown at me multiple times."
Federal Court Strikes Down Similar Ban
The right to perform drag has also gotten national attention. Recently, in Friends of George's v. Mulroy, a federal court in Tennessee blocked a similar law. The court found it an unconstitutional violation of free speech because it discriminated based on content and viewpoint and was overbroad. In addition, the court found that it was unconstitutionally vague. That law, like the ordinances in Iowa, wrongly classified drag as prohibited "adult cabaret entertainment" and made drag a crime if performed where it could be viewed by a minor.
"We've been working on these request letters for some time," Aurora said, "but it's fitting that we're sending them during Pride month. It's a reminder to all cities that they need to respect the free speech and equal protection rights of participants and attendees at Pride celebrations. And to everyone—especially drag performers—we at the ACLU want to hear from you if a city violates your rights by targeting drag."
Aurora said the ACLU encourages all Iowa cities—not just the cities to which letters were sent—to take a close look at their ordinances to make sure they do not include language that classifies "female and male impersonators" as adult entertainment.
Drag performers or venues that are experiencing restrictions can contact the ACLU of Iowa at legal.program@aclu-ia.org.
