The adage “what you don’t know, can’t hurt you,” has been proven wrong time and time again. As the author, Margaret Atwood once said, “sometimes what you don’t know can hurt you very much.” We all think of laws as coming from the State legislature and Congress, but when is the last time you or anyone you know took time to pour over the ordinances of your town or city? What you might find in these ordinances may shock you. So, what are local ordinances and why do they matter?
What is a Local Ordinance?
Nearly every municipality in the United States has some form of local government. Most of us are familiar with a mayor and either a city council made up of elected officials, or a mayor and a village manager tasked with overseeing the day-to-day operations of a municipality. In most of these municipalities, the mayor and city council can pass local ordinances – ordinances that are enforceable by law enforcement and often carry fines for violating them.
While we may be familiar with issues involving noise ordinances – for example, in the City of Chicago, a noise ordinance violation will run you $300 for the first offense, $500 for a second offense within a year, and a $1000 for every violation after in a one-year period. Some ordinances we may be less familiar with such as the City of Chicago’s ordinance against “directing persons to houses of ill-fame,” which carries a fine of $100 for the first offense and no more than $400 for each subsequent offense. While some ordinances seem like downright antiques of a bygone era.
Ordinances Regulating How You Can Dress
In municipalities across Illinois (and the United States), there are ordinances that read something like this: “It shall be unlawful for any person to . . . appear in any public place in clothes properly belonging to the opposite sex.” The majority of these “moral conduct” ordinances were adopted in the early 1960’s and 1970’s as a reaction to the counterculture that was sweeping through America at the time, but now read as out of place. Other ordinances would likely impact all of us at some point in our life, such as an ordinance on profanity, which in some towns reads “it shall be unlawful to use profanity in any street, alley, or other public place in the village.”
Do Police Actually Arrest People Based on Their Clothing?
Now, you may be asking yourself, are these ordinances enforced by law enforcement, or were they ever enforced? The answer is yes – there have been attempts at enforcing these ordinances – in fact, even the City of Chicago attempted to enforce this ordinance once upon a time. In February of 1974, two individuals were arrested after they emerged from a restaurant where they had just finished breakfast. Their crime? Being two biological-males, one of whom was wearing a “black knee-length dress, a fur coat, nylon stockings and a black wig,” while the other wore “a pants suit, high-heeled shoes, and cosmetic makeup.” In piling on the injustice of arresting these two individuals, the police photographed them in various stages of undress and fined them both $100 for wearing “clothing properly belonging to the opposite sex.”
Freedom of Expression and Equal Protection
At their trial, both individuals filed a motion to dismiss the matter claiming the ordinance violated their equal protection rights under the U.S. Constitution and their right to freedom of expression and privacy. The trial court denied their motion and found both individuals guilty and upheld the fine of $100 assessed against them. The Illinois Appellate Court then upheld the trial court’s decision to assess a fine. At the Illinois Appellate Court level, the city put forward an argument that a total ban against “cross-dressing in public,” was meant to “protect citizens from being misled or defrauded, aid in the description and detection of criminals, prevent crimes in washrooms, or prevent inherently anti-social conduct contrary to accepted norms of society.”
This case eventually made it to the Illinois Supreme Court as City of Chicago v. Wilson, where the Illinois Supreme Court rejected the trial and appellate court’s logic. The Illinois Supreme Court did not reach the issue of equal protection or the vagueness in its decision, instead, finding that the ordinance itself was unconstitutional. The Illinois Supreme Court looked to other cases where ordinances were invalidated, such as ordinances that prohibited public dancing in restaurants, or ordinances that prohibited smoking on a public street. The Court found, like prohibiting dancing in restaurants, there was no connection between regulating the way one dresses and public health, safety, or welfare. However, the Court narrowed its ruling stating that because these two individuals were required, under the therapeutic methods of that time, to “cross-dress” before undergoing gender affirmation surgery, the city of Chicago did not have a rational basis for enforcing the ordinance. Of course, this leaves open the question of whether, as the dissenting justices point out, the ordinance could be enforced against someone who is not undergoing gender reaffirming surgery. Although the City of Chicago has since removed this ordinance, perhaps it is the loophole discussed in Wilson that other municipalities look to when keeping this ordinance in their books.
Are There Still Such Laws?
The question then remains whether this ordinance would be enforceable today. While some towns followed Chicago’s suit and removed their ordinances, many municipalities have not. The question seems to turn on how a challenge to the ordinances would come up in court. In most instances, law enforcement likely does not know that restrictions on dress are contained in their city’s ordinances. While a police officer may know the general maxim of “no shirt, no shoes, no service,” it is unlikely an officer would be directed to enforce an ordinance against individuals “wearing clothing properly belonging to the opposite sex.” However, this informal way of not enforcing an ordinance and nullifying it may not be enough.
Man Fired for Wearing an Earring
In the federal Ninth Circuit Court of Appeals, which covers States such as California and Hawaii, the court held that Title VII, which bans discrimination in employment based on gender, did not protect a male teacher who wore a small gold ear-loop to school from being fired. The man argued the school fired him based on an inappropriate stereotype of “male appearance,” or that he “should have a virile rather than effeminate appearance.” The Court held that Title VII did not protect the man from his employment being terminated. Similarly, the Court held in another case, an individual undergoing gender reaffirming surgery was not protected under Title VII. It was not until the United States Supreme Court’s decision in Bostock v. Clayton County, Georgia, in 2020 that an employer was prohibited from firing an individual simply for being transgender.
So, what bearing does Title VII have on local ordinance violations? Arguably, not much as one involves criminal penalties and Title VII has to do with employment-based decisions. However, the fluff in a Court’s decision, called “dicta” in Latin, can often change the course of the law for decades to come. In Bostock, Justice Gorsuch, wrote that while the writers of Title VII in 1964 may have never envisioned or intended the law to “lead to this particular result,” that the “limits of the drafters’ imagination supply no reason to ignore the law’s demands.” Justice Gorsuch also went on to highlight other types of discrimination Title VII that were expanded to protect against, including discrimination based on motherhood or banning the sexual harassment of male employees. Here, the same logic applies to the enforcement of ordinances, which are quasi-criminal in nature.
Life and Liberty Shall Not be Denied
Title VII and the local ordinances discussed in this blog post are both enforceable under the 14th Amendment to the United States constitution, which states, in part, no State “shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In general, as one line of law develops, e.g., prohibitions on discrimination in employment, so go other laws preventing enforcement of criminal or quasi-criminal laws penalizing individuals because of sex, sexual orientation, or gender identity. While these local ordinances remain on the books throughout Illinois and the United States, it is likely that if anyone were to ever be prosecuted under them, lawsuits would abound.
Speak to an Experienced Attorney
While these ordinances may have lost their teeth (as they should), there are many other ordinances that an individual can be charged and fined under. For example, in the City of Chicago, one may get a traffic ticket based on State law, such as a failure to yield or failure to reduce speed to avoid an accident and may also receive a local ordinance ticket for issues such as operating a vehicle in reverse without regard for reasonable safety or interfering with traffic. While one may need to appear in their local circuit court for a state law violation, local ordinance violations may require one to appear in front of an administrative body of the city or village where they received the local ordinance ticket. Experienced criminal attorneys, such as those at Mitchell S. Sexner & Associates LLC, can explain the differences to you and represent you in front of both the court and an administrative body. Call (312) 644-0444 for a free consultation.