NEW ORLEANS – Three exotic dancers filed a federal lawsuit on Sept. 22 in the U.S. District Court for the Eastern District of Louisiana alleging that a new state law restricting the age of strip club dancers to 21 or older is unconstitutional.
Identified in the lawsuit as Jane Doe I, II and III, the three dancers say Act No. 395 (the law) violates their First Amendment rights to express themselves with erotic dance, and their 14th Amendment rights for equal protection.
Effective Aug. 1, 2016, the law reads, in part, “Subject to the provisions of Subsection D of this Section, entertainers whose breasts or buttocks are exposed to view shall perform only upon a stage at least eighteen inches above the immediate floor level, and removed at least three feet from the nearest patron, and shall be twenty-one years of age or older.”
The law introduces age-based restrictions that did not exist before the enactment of the law. The age of majority in Louisiana is 18. The law prohibits adults who have reached the age of majority in Louisiana but who have not yet reached the age of 21 from performing as erotic dancers.
The plaintiffs claim the law unlawfully targets women, citing the definition in the new law that expressly defines performers as entertainers whose breasts or buttocks are exposed. The plaintiffs claim that language explicitly references women, not men, and as such, discriminates based on gender.
“The First Amendment protects a broader array of both verbal and nonverbal communication than political speech," attorney and human rights advocate Pamela Newport told the Louisiana Record. "While I think a court would agree that a state could ban nude dancing for minors, I'm not sure that the same argument would hold true for adults, albeit, young adults.”
Newport said the biggest hurdle for the plaintiffs is that legal distinctions based on age are generally only subject to rational basis review, meaning that the state will only have to prove it has a legitimate interest in the law and there is a reasonable link between that interest and the challenged law. “Going back to the 1970s, the U.S. Supreme Court has either hinted or expressly ruled that nude dancing is a form of expression protected by the First Amendment. Although the Court has upheld some restrictions on this expression, an outright ban is unconstitutional,” Newport said.
The lawsuit also contends the law infringes on the plaintiffs' 14th Amendment rights. It says the the law was “(e)nacted to regulate and ‘protect’ women aged eighteen, nineteen and twenty. Such protective, discriminatory legislation is prohibited by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Article I, § 3 of the Louisiana Constitution of 1974.”
In an effort to illustrate the legislators’ alleged intent to discriminate based on gender, the lawsuit also quotes comments by some legislators during the legislative session.
Rep. Robby Carter commented during a legislative session: “We need to do something to get these people [to] recognize that there’s another way of living, you know. I wish there was something we could do to make them [erotic dancers] go to church or something.”
Rep. Beryl Amedee made the following statement to the Louisiana House of Representatives: “Now I know a lot of people in the room are thinking of their daughters, their younger sisters, perhaps and they’re thinking, ‘well I don’t want my daughter doing that.’ But, think about the girls who do these jobs, who don’t have a dad, who don’t have a big brother, who would say ‘I really don’t want you doing that for a living, I don’t want you in that environment.'”
Rep. Walt Leger stated that the bill was brought in an effort to protect “young women.”
Rep. Julie Stokes responded to the comments during the session stating, “Looking out over this body [the House of Representatives], I’ve never been more repulsed to be part of it. I can’t even believe the behavior in here. I think we need to call an end to this. I hear derogatory comments about women in this place regularly, I hear and I see women get treated differently than men. . . . That was utterly disrespectful and disgusting.”
Newport sees the law as a constitutional violation.
“This legislation violates the 14th Amendment in that it discriminates against women, given the ‘bare breasts and buttocks’ language, in conjunction with the legislative history and the discussion by at least one legislator that the law is to protect young women,” she said.
The plaintiffs claim, although the intent of the bill is illegal, its enforcement will create more harm for dancers aged 18, 19 and 20 because they will be at an increased risk from pimps, prostitutes, and traffickers. Jane Doe I said she witnessed pimps and prostitutes attempting to use the law’s age restrictions to recruit entertainers who cannot perform any longer.
Jane Doe II said her income was reduced by more than 50 percent as a result of the law’s enactment, and all plaintiffs claim it will force others in similar situations into prostitution.
“The legislation passed reeks of the worst kind of paternalism and sexism disguised as chivalry," Newport said. "I don't see how this legislation can possibly pass constitutional muster. The state would have to show some pretty specific and direct harm to women 18-20 from exotic dancing in order to justify the restrictions.”