Newton may no longer consider drag performances as adult entertainment

To avoid any misinterpretations or infringements of constitutional rights, Newton is in the process of deleting code language that considers “male or female impersonators” as adult entertainment in the city’s zoning ordinances, under guidance from the American Civil Liberties Union of Iowa.

Newton City Council passed the first reading of the amended ordinance at the July 24 meeting in a 5-1 vote, with council member Randy Ervin voting no.

Erin Chambers, director of community development, told Newton News the city attorney is advising the language in city code violates federal free speech laws as it relates to drag performances. By deleting the passage, the city would no longer classify drag performances as adult entertainment.

The zoning code chapter in question — which had a number of other language changes introduced — is a collection of land usage regulations, Chambers said. The code determines what is allowed to be built, where it can be built and the acceptable uses of land inside various zoning districts.

“We received notice from the ACLU that the language, as it was written, did not align with federal law,” Chambers said.

In June, the ACLU of Iowa announced it had sent letters to a number of council members in Iowa cities advising them that their ordinances including “female impersonators” and “male impersonators” as adult entertainment are unconstitutional and must be changed.

Cities oftentimes have zoning laws pertaining to the types of businesses that can be operated. Adult entertainment venues featuring erotic or sexually explicit performances are restricted on where they can be located and may be subject to other regulations. These same zoning laws affected drag shows.

Shefali Aurora, staff attorney at ACLU of Iowa, argued in the press release that classifying all drag entertainment as adult entertainment is constitutional because it violates free speech as an unjustifiable content restriction, and it violates equal protection in targeting the LGTBQ community.

Aurora also said the classification is overbroad by including all drag shows as adult expression, regardless of whether they are erotic or sexually explicit.

By definition, drag is not considered adult entertainment. In fact, drag is defined as the act of exaggeratedly wearing clothing, makeup and hair conventionally worn by the other sex. ACLU of Iowa maintains the zoning ordinances singling out male or female impersonators are violations to freedom of expression.

“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. These ordinances simply perpetuate a history of hostility towards the LGBTQ community,” Aurora said.

Ervin voted against the first reading of the amended ordinance, which also features a number of other language revisions including: changes to residential zoning districts, commercial zoning districts, accessory buildings, bed and breakfast inns, fences and towers and wireless communication facilities.

The council member at-large noted the ACLU is not a governing body.

Chambers said, “The Iowa chapter of the ACLU reached out to a number of communities — Newton included — about code language that conflicted with that federal language in terms of nondiscriminatory language.”

Ervin responded, “But that’s their opinion at this point. You keep saying that it’s contradictory to federal language.”

“Our city attorney also concurred. So after receiving that letter we of course sent that to Brick Gentry, who then concurred. Brick Gentry’s recommendation was forward to the planning and zoning commission, who then reviewed that.”

According to the minutes of the planning and zoning commission meeting on July 12, the matter was recommended for council approval without any additional questions or comments during the public hearing.

In a follow-up interview with Newton News, Ervin explained he voted “no” not because of the changes to the ordinance language. He wanted to know why the city wanted to change the language and whether it was truly necessary. Ervin specifically wanted someone from city staff to tell him.

Is this something our attorney advised us to do? Is this something that just needs to change? Are we getting some political pressure somewhere? Are we getting some public pressure somewhere? Why now do we have all these changes that we want to make?

These are the questions Ervin wants answered.

“I had a great boss tell me at one time: ‘It’s not the answers you get, it’s the questions you ask.’ And I think that’s really the case of this,” Ervin said. “I’m not saying that those aren’t all necessary or needed, I’m just saying let’s talk about them, let’s go through them to see if they’re really necessary.”

The amended ordinance has two more readings before it can be adopted.