Iowa ACLU urges cities to rescind drag ordinances

DES MOINES — The ACLU of Iowa has asked three Iowa cities to remove language in city code that they say unconstitutionally restricts drag performances.

The group, the state chapter of the American Civil Liberties Union, targeted ordinances in Waukee, Pella and Dyersville with similar wording, sending letters to city officials on Tuesday.

The ordinances include “male or female impersonators” in the definition of “adult cabaret,” and impose certain zoning restrictions on establishments that feature those performers. Two of the ordinances include "go-go dancers" in the definition, which the ACLU also said should be removed.

In the letters, the ACLU said the restrictions on male and female impersonators and go-go dancers are unconstitutional because they are “content-based restrictions” and overly broad.

“We've been working on these requests for some time now, but it is fitting that we're able to send them during pride month,” ACLU of Iowa staff attorney Shefali Aurora told reporters on Tuesday. “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 drag performances.”

Aurora said the ACLU of Iowa had spoken with the city attorneys at the three cities they sent letters to Tuesday, but this was the first formal written communication with the cities.

Four other cities — Eagle Grove, Grinnell, Knoxville and Newton — had been previously contacted by the ACLU. Eagle Grove has changed its ordinance, and the other three cities said they plan to change their ordinances.

Because the ordinances specify male and female impersonators in their restrictions, regardless of whether the performances are sexually explicit, the ACLU said it restricts constitutionally protected speech.

“The same speech or expression, if performed or expressed by non ‘male or female impersonators’, is not prohibited,” the letters said. “This Ordinance effectively prohibits all drag performances in the City.”

Common in the LGBTQ community, drag shows are performances in which performers impersonate women or men, often employing exaggerated feminine or masculine features. They commonly include dancing, singing or lip-syncing, and comedy.

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“An underlying issue with the Ordinance is that drag performances are not inherently sexually explicit by nature; they typically feature fully-clothed performers singing, dancing, and performing comedy bits,” the letters said.

The ACLU of Iowa also said the ordinances violate constitutional protections against sex and gender discrimination. The organization said Iowa and federal courts have established any restriction based on sex or a person’s transgender status requires heightened scrutiny.

Heather Behrens, a spokesperson for the City of Waukee, said in an email the city may review the definitions in the section, but she said city code does not prohibit male and female impersonators from performing. The mention of "male or female impersonators," part of the city's zoning code, is among a list of definitions that clarify the activities that generally happen as part of adult cabaret, she said.

"Male and female impersonators as part of other types of entertainment that are not classified as an Adult Entertainment Business, such as a drag brunch at a restaurant, are not restricted in Waukee," she said.

“We thank the ACLU for bringing their concerns to our attention, so the City can review the language,” Behrens added. “Changing language within city code takes some time to move through the process. Language is reviewed by staff and legal counsel.”

Dyersville City Administrator Mick Michel said elected officials have received the letter, but the city staff would not comment on the assertion that the ordinance is unconstitutional.

Michel said the ordinance has been part of city code for a long time, but there are no pending applications for facilities to be licensed as an adult cabaret.

“Our code of ordinances are constantly reviewed by our attorneys for review of statutory compliance,” he said. “And as of right now, what I can tell you is that there are no pending applications on file that are being considered and reviewed.”

Pella Mayor Don DeWaard declined to comment.

While the ordinances are not new, Aurora said the ACLU was made aware of them after a bar in Eagle Grove received a letter from city officials informing it that a planned drag show violated city code.

The letters requested that the cities respond within 14 days and agree to amend the ordinance to take out references to male or female impersonators.

Aurora did not say whether the ACLU of Iowa would pursue legal action of the cities did not amend their ordinances.

"We hope that they do comply with the letters," she said. "If they do not we will be looking into all of our options."

Drag shows have become a flashpoint in many state legislatures and local politics as some Republican-majority states have passed laws restricting them, among other laws aimed at LGBTQ topics in schools and transgender youth.

Tennessee Gov. Bill Lee signed a law earlier this year banning “adult cabaret” performances on public property and anywhere minors may be present, but a federal judge ruled the law unconstitutional this month.

Iowa Sen. Sandy Salmon, R-Janesville, introduced a bill during this year’s Iowa legislative session that would have barred minors from attending any drag performance, subjecting adults who accompany children to drag performances to a simple misdemeanor charge. The bill did not advance.