Emma Dilemma, a makeup artist and bikini barista for the last year and a half, serves a drink to a customer while dressed as Lily Munster on Tuesday, at XO Espresso on 41st Street in Everett. (Ryan Berry / The Herald)

Emma Dilemma, a makeup artist and bikini barista for the last year and a half, serves a drink to a customer while dressed as Lily Munster on Tuesday, at XO Espresso on 41st Street in Everett. (Ryan Berry / The Herald)

Everett city dress code for bikini baristas ruled unconstitutional

The U.S. District Court in Seattle published a ruling last week, finding a city ordinance was shaped by gender-based discrimination.

EVERETT — A city of Everett dress code ordinance saying bikini baristas must cover their bodies at work has been ruled unconstitutional in U.S. District Court.

The decision in a partial summary judgment comes after a lengthy legal battle between bikini baristas and the city of Everett over the rights of workers to wear what they want.

U.S. District Court in Seattle published the ruling last week, finding Everett’s dress code ordinance violated the Equal Protection clauses of the U.S. and Washington state constitutions. The Court found that the ordinance was, at least in part, shaped by a gender-based discriminatory purpose, according to a 19-page ruling signed by U.S. District Judge Ricardo S. Martinez.

It is difficult to imagine, the court wrote, how the ordinance would be equally applied to men and women in practice because it prohibits clothing “typically worn by women rather than men,” including midriff and scoop-back shirts, as well as bikinis.

Bikini baristas were “clearly” a target of the ordinance, the court also ruled, adding that the profession is comprised of a workforce that is almost entirely women.

“Assuming the owners of bikini barista stands are unable or unwilling to enforce this dress code, at some point law enforcement will be asked to measure exposure of skin by some method,” the ruling reads. “This ‘encourage(s) a humiliating, intrusive, and demoralizing search on women, disempowering them and stripping them of their freedom.’”

On Tuesday night at Hillbilly Espresso, a drive-thru barista greeted customers in a Lily Munster costume at the corner of Rucker Avenue and 41st Street in Everett. The barista, who identified herself as Emma Dilemma, declined to give her last name for privacy reasons. She said she was relieved to hear news of the court’s ruling, adding that the ordinance enacted “weird” rules that would make her and other employees feel uncomfortable.

“I think this protects our safety from law enforcement touching our body,” she said. “Who’s approving my outfit? Is it my female boss or some random dude cop that I don’t know? I don’t want them having to stick a ruler next to my body.”

In 2017, the city enacted its dress code ordinance, requiring all employees, owners and operators of “quick service facilities” to wear clothing that covers the upper and lower body. The ordinance listed coffee stands, fast food restaurants, delis, food trucks and coffee shops as examples of quick service businesses.

The owner of Everett bikini barista stand Hillbilly Hotties and some employees filed a legal complaint challenging the constitutionality of the dress code ordinance. Plaintiffs included stand owner Jovanna Edge and employees Natalie Bjerke, Matteson Hernandez, Leah Humphrey, Amelia Powell and Liberty Ziska.

The legal complaint also challenged the city’s lewd conduct ordinance, a law that expanded the definition of a lewd act to include exposure of “more than one-half of the part of the female breast located below the top of the areola,” “the genitals, anus, bottom one-half of the anal cleft or any portion of the areola or nipple of the female breast” and created the new crime of facilitating lewd conduct.

The baristas sued the city, arguing their outfits were a way to express themselves and that the code violated their First Amendment rights.

In written declarations, the baristas asserted their right to a lack of clothing was akin to their right to free speech, through its role as a message of body positivity, women’s empowerment and freedom.

“Some countries make you wear lots of clothing because of their religious beliefs,” Hernandez wrote. “But America is different because you can wear what you want to wear. I wear what I’m comfortable with and others can wear what they are comfortable with. Wearing a bikini sends this message to others.”

“We are here saying we watched our moms and grandmas going through hell and we don’t have to,” Ziska wrote. “Millions of women fought for our rights and right to vote and it’s my right to wear what I want. It’s my right as a person.”

Judge Martinez dismissed the baristas’ challenge on the free speech issue.

It has been a long road for the case to see a ruling on its merits.

A federal judge in 2017 issued a preliminary injunction, banning Everett from enforcing the dress code.

In 2019, the federal Court of Appeals for the Ninth Circuit sided with the city to implement the dress code.

And in 2020, the coffee stand workers filed to have their case heard by the Supreme Court.

The baristas argued the city’s ordinances were rooted in romantic paternalism toward women or sex stereotyping.

“It is the embodiment of the belief that women must dress a certain way to avoid exciting men to sexual misconduct,” reads the legal complaint. “Or that society should be able to tell women — but not men — to cover up certain body parts because others might find those parts sexual. Those beliefs are rooted in impermissible stereotypes about what is and is not proper dress and behavior for one’s sex.”

Supreme Court justices did not hear the case. It made its way back down to a lower court to address legal questions from the Ninth Circuit’s ruling.

The District Court’s ruling dismissed all claims filed by the baristas, except for their claim about the dress code ordinance.

The court granted a motion for summary judgment on that ruling and directed the city of Everett meet with the plaintiffs within 14 days to discuss next steps, “including the submission of an additional proposed order if necessary.”

A city of Everett spokesperson did not immediately return a Daily Herald reporter’s request for comment.

Ellen Dennis: 425-339-3486; ellen.dennis@heraldnet.com; Twitter: @reporterellen.

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