Sullivan-Knoff v. City of Chi.
| Decision Date | 12 November 2018 |
| Docket Number | No. 16-cv-08297,16-cv-08297 |
| Citation | 348 F.Supp.3d 787 |
| Parties | Bea SULLIVAN-KNOFF, Plaintiff, v. CITY OF CHICAGO, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Mary Johanna Grieb, Shiller Preyar Law Offices, Chicago, IL, for Plaintiff.
William Macy Aguiar, Ellen Wight McLaughlin, Margaret R. Sobota, Tara D. Kennedy, City of Chicago, Department of Law, Chicago, IL, for Defendants.
This case concerns Plaintiff Bea Sullivan-Knoff's claims that Defendants City of Chicago ("City") and Mayor Rahm Emanuel are infringing on her constitutional rights by maintaining and enforcing Municipal Code of Chicago § 4-60-140(d) ("Ordinance"), which prohibits nude or semi-nude performances in establishments licensed to sell liquor at retail in the City. Specifically, Sullivan-Knoff brings claims pursuant to 42 U.S.C. § 1983 against the City and Mayor Emanuel alleging that the Ordinance violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, as well as the First Amendment to the United States Constitution. In addition to those federal claims, Sullivan-Knoff further alleges that the Ordinance violates Section 2 and Section 18 of Article I of the Illinois Constitution and the Illinois Human Rights Act ("IHRA"), 775 ILCS 5 et seq. Before the Court is Defendants' motion to dismiss Sullivan-Knoff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 15.) As explained below, Defendants' motion is granted in part and denied in part.
The Ordinance prohibits nude or semi-nude performances in establishments licensed to sell liquor at retail in the City. It provides:
Municipal Code of Chicago § 4-60-140(d).
Sullivan-Knoff is a 23-year-old queer and transgender woman who holds a Bachelor of Arts degree from Northwestern University in Theatre with a focus on Playwriting and Gender and Sexuality Studies. (Compl. ¶ 10, Dkt. No. 1.) In pursuing a career as an artist, Sullivan-Knoff has performed at various venues across the Chicago area, some of which hold liquor licenses. (Id. ¶ 17.) Sullivan-Knoff's performances often involve exposing her body in a public place. (Id. ¶ 18.) She does so "to reclaim her body in the face of legislation and discrimination directed against transgender bodies, to make herself vulnerable, and to create an impactful experience for the audience." (Id. ¶ 19.)
In one of Sullivan-Knoff's performance pieces, she appears onstage with her body wrapped in a sheet and her head covered by a brown paper bag with "Touch Me" written on all four sides. (Id. ¶ 21.) Members of the audience are invited to touch Sullivan-Knoff's body, and after a set period, Sullivan-Knoff removes the brown paper bag. (Id. ) Sullivan-Knoff has been prevented from performing this piece because of the Ordinance. (Id. ¶ 24.) In 2015, Sullivan-Knoff wished to perform this act at a festival held at an establishment that holds a liquor license in Chicago, but she did not do so because of the Ordinance. (Id. ¶ 25.) In April 2016, Sullivan-Knoff performed the act at an establishment that holds a liquor license issued by the City, but she feared legal repercussions against herself and the establishment. (Id. ¶ 23.) Sullivan-Knoff anticipates performing again in the future at the same festival and establishment. (Id. ¶ 27.) She remains concerned about the possibility of legal repercussions against her and the establishment due to the Ordinance. (Id. ¶¶ 27, 30.)
To survive a Rule 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). While the complaint need not contain detailed factual allegations, there "must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. "A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In her Complaint, Sullivan-Knoff asserts three claims pursuant to 42 U.S.C. § 1983 : Count I alleges an Equal Protection violation due to the Ordinance's prohibition of the exposure of female breasts but not male breasts; Count II alleges a First Amendment violation on the basis that the Ordinance is overbroad; and Count III alleges that the Ordinance violates the Due Process Clause because it is vague as to what "female breast" means and because it violates the right to bodily integrity. Sullivan-Knoff also raises three claims under Illinois state law: Counts IV and V allege violations of the Illinois Constitution's due process and equal protection clauses; and Count VI alleges a violation of the IHRA, on the ground that the Ordinance constitutes sex discrimination. Defendants move to dismiss all these claims.2
As a preliminary matter, it is not clear from the face of the Complaint that Sullivan-Knoff's performance violates the plain terms of the Ordinance, as the allegations in the Complaint suggest that Sullivan-Knoff is covered by a sheet during the entirety of her performance. Nonetheless, the Court will assume for purposes of Defendants' motion to dismiss that Sullivan-Knoff's performance does involve exposure of nudity as defined by the Ordinance because it is plausible that throughout the course of her performance the relevant parts of Sullivan-Knoff's body are "less than completely and opaquely covered." Municipal Code of Chicago § 4-60-140(d).3
"The Equal Protection Clause of the Fourteenth Amendment ‘is essentially a direction that all persons similarly situated should be treated alike.’ " Lawrence v. Texas , 539 U.S. 558, 579, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (quoting Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ). The Equal Protection Clause prohibits sex-based discrimination by the government unless there is an "exceedingly persuasive justification" for doing so. United States v. Virginia , 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Put another way, the government rationale for distinguishing between males and females must satisfy the intermediate-scrutiny standard of being "substantially related" to an "important governmental interest." Id. at 533, 116 S.Ct. 2264. The government's justification "must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Id. And although there are enduring differences between males and females, such differences are not "for denigration of the members of either sex or for artificial constraints on an individual's opportunity." Id.
Here, the Ordinance prohibits the exposure of nudity by both females and males in establishments licensed to sell liquor, but it treats females and males differently in that it only prohibits the public exposure of "any portion of the female breast at or below the areola thereof." Id. § 4-60-140(d) (emphasis added). Sullivan-Knoff contends that this differential treatment of females and males violates the Equal Protection Clause. Defendants, on the other hand, proffer that the Ordinance is designed to combat the harmful secondary effects that arise from the combination of sexual nudity and alcohol. (Defs.' Memo. in Supp. of Mot. to Dismiss at 6, 10, Dkt. No. 20.) The differential treatment about which Sullivan-Knoff complains is premised on the notion that female breasts are sexual in nature in a way that male breasts are not. Defendants cite cases that appeal to societal convention in substantiating this proposition. (Id. at 4) (citing Buzzetti v. City of N.Y. , 140 F.3d 134, 143 (2d Cir. 1998) ) ( ); United States v. Biocic , 928 F.2d 112, 116 (4th Cir. 1991) ().)
This Court, however, heeds the guidance from the United States Supreme Court holding that Defendants may not rely on overbroad generalizations about the nature of females and males, and that any differences identified may not denigrate or artificially constrain either sex. See Virginia , 518 U.S. at 533, 116 S.Ct. 2264 ; see also Craig v. Boren , 429 U.S. 190, 210...
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