The Town of Aurora recently made a change to its town code after it raised First Amendment violation concerns. The town board voted to remove the words "male or female impersonators" from its adult use code, which they were prompted to look at because of a drag brunch held at Angelina’s, a pub at the edge of town.
A drag brunch serves eggs with a side of fierceness and spills the metaphorical tea. The restaurant provides the food and keeps the mimosas flowing, while the drag performers provide the entertainment. Drew Deren hosts the drag brunch at Angelina’s.
“So I'll be on the mic. I'll be entertaining the crowd trying to tell some jokes, emphasis on 'trying.' We have performances like lip syncing and dancing,” Deren said.
When in drag, Deren becomes Ditzy Duke who is known for her signature move "the Ditzy."
"I just like to have fun on stage. I like to hit the beats. I love to dance.”
Just two drag brunches have been held at Angelina’s so far, and the first took place in October. Operating Manager Bernadette Singer said the first event was sold out with a backup list of 120 people, but once the date was set and all tickets sold for the first brunch, Singer was contacted by the Town of Aurora’s Board to say the event was in violation of town code.
The Town of Aurora’s code includes "male or female impersonators" in the adult use section of its zoning code. Adult use zoning is designed to keep sex or nudity-related establishments such as strip clubs and adult movie theaters in specific places.
Angelina’s is in a zoning area that would permit adult use activities, but the business is within 500 feet of a church. Under the code, that means they are required to apply for a special use permit, which Singer did.
“To the best of my knowledge, I received the OK to go forward with the event and I also received notification that there would be a public hearing,” Singer said.
That public hearing was about a suggested change to the code. The town board proposed to remove the four words “male or female impersonators” from the adult use section.
“I was flabbergasted when I read the town code that said male or female impersonators," said Town of Aurora Councilman Joseph McCann at the public hearing Dec. 12.
McCann was prompted to check the code when a citizen raised concerns about the drag brunch. At the hearing, McCann said the code is against freedom of expression.
"All we're doing is removing a part of it that is certainly against the First Amendment, that is certainly unenforceable because you cannot define gender roles."
Town Historian Robert Goller reminded those present that male and female impersonation isn’t just drag performance. Goller performs at an annual fundraiser in the village of East Aurora, which also includes language defining male and female impersonators as adult use in its code. Goller has performed dressed as various historical figures and recalled some of his past costumes.
“I'm not a drag queen. But I technically was breaking the law,” said Goller at the hearing. “I was Susan B. Anthony. And technically, that would be against this code and, believe me, there is nothing sexual about Susan B. Anthony.”
After the public hearing, the vote was tabled. And on Dec. 27, the Town of Aurora’s board unanimously voted to remove the words in question from its code. But this language can be found in other town codes in the region.
“Most codes of those type are based on model code, code provided by New York State. So really, New York State put out a code and everybody just adopted it,” McCann said.
WBFO's research has found the words "male or female impersonators" in the adult use code in cities, towns and villages across the region, including those in Niagara, Cattaraugus, Wyoming, Orleans and Genesee counties. WBFO also found it in codes in at least five other counties across the state.
Professor Lucinda Finley from University at Buffalo’s School of Law said the inclusion of this language presents First Amendment violation concerns.
“Drag performances have been held by courts to be a form of expressive performance art that is protected by the First Amendment. And so the code as it currently stands tries to put restrictions on a form of First Amendment protected artistic expression,” Finley said.
Ditzy Duke said drag is more than impersonation.
“It's really outdated rhetoric, just talking about female impersonation or male impersonation, whereas that's not really what we do. It's an art form and we're just expressing ourselves.”
