There's been a resurgence in racy burlesque performances in bars and clubs across North America, but a Hamilton bylaw officer considers the "art form" just too risqué for the city establishments.

A legal fight is taking shape over the city's policing of burlesque dancers, two of whom were ticketed just after they'd performed at a Hess Village club in August.

People are coming out and paying $13 for a very nice cocktail, so we're going to give them a very nice cocktail show. - Dolly Berlin, organizer of show where burlesque dancers were ticketed

The dancers and the bar owner see the case as a way to fight the city of Hamilton over the wording of its licensing bylaw around what constitutes "adult entertainment."

The dancers say the wording is just too broad.

The bylaw currently "prohibits adult services appealing to or designed to appeal to erotic or sexual appetites or inclinations" – including entertainment advertised as "sexy," and services featuring "nudity or partial nudity."

In the case of these tickets, the city hasn't said exactly what crossed the line.

'Where you're going to draw that line'

The bylaw limits stripping to strip clubs, of which there are two permitted in Hamilton.

But burlesque is different from stripping, say burlesque supporters. They see their genre as an art form, a melding of musical theatre, jazz, costumes and music. The dancers perform elaborate routines that often involve stripteases – emphasis on the tease, they say.

Dancers can end up exposed all the way down to some pasties or tassles covering their nipples, and a g-string, with or without fishnet tights, shoes and other accessories.

"The way the bylaws are written they're really open to where you're going to draw that line," said Cadence Machry, a burlesque performer herself who moved to Hamilton two years ago and was in the audience at the performance where the dancers were ticketed.

"'Sexy,' 'partial nudity,'" she said, referring to words included in the city's bylaw. "This could shut down a fashion show. This could shut down a Victoria's Secret advertisement."

'Fishnet tights and feathers and sparkles'

Machry has been involved in burlesque for 13 years in the Maritimes and in Ontario, she said.

There are several regularly scheduled burlesque shows across Toronto, and other shows in Hamilton have gone off without any dancers taking home a summons.

"The language hasn't really evolved to allow for other forms of entertainment to be included," Machry said.

The evening in question happened at a club called Ten Decades that prides itself on "hand-crafted" cocktails poured by nattily dressed bartenders.

The bar, in Hess Village, is going for the kind of New Orleans, speakeasy-prohibition vibe that tries to transport you back to the days in which burlesque dancers might actually have expected to be busted by the morality police.

Dolly Berlin, the stage name for a dancer who pulled the show together, said she wasn't expecting anything but fun that night. She and an event promoter at the bar had talked about making it a regular gig.

"It's a classy bar; it was going to have a classy flavor," she said. "Everyone's wearing fishnet tights and feathers and sparkles. People are coming out and paying $13 for a very nice cocktail, so we're going to give them a very nice cocktail show."

'Activities that were categorized as adult entertainment'

But after the first two performances, a bylaw officer wearing a golf shirt uniform gave tickets to the dancers, named Ashley Keefer and Kayla Kunkel, and told them they were performing as adult entertainers without a licence.

A burlesque dancer named Kayla Kunkel was charged by city bylaw after performing a routine at Ten Decades club in Hess Village. (Ruth Gillson)

There are differing accounts of how the bylaw officer ended up there, but city spokesperson Ann Lamanes said a "female officer was in the area and performing her regular duties when she visited the club," as a matter of "proactive enforcement."

While there, the officer "observed two dancers performing activities that were categorized as Adult Entertainment."

Asked exactly what prohibited "activities" were being performed, Lamanes sent a link to a YouTube video of one of the dancers performing earlier this summer in Toronto.

Taking the fight to court

The two attended court this week in Hamilton to formally fight the charge. The bar is also fighting a charge of operating an adult establishment without a licence. The fight is expected to next go to court in November.

Keefer said burlesque is her art, a means of expression she had never found in another art form despite performing all her life.

"It has helped me discover who I am, and has changed my life in the best possible ways," Keefer said. "It is extremely upsetting to be told one does not have the right to express themselves freely."

Both dancers also perform in Toronto. Kunkel said instead of watching and then ticketing, the bylaw officer should asked to hear about the scope of the show, or issued a warning.

"In Toronto we've made changes to our bylaws to differentiate between burlesque and adult entertainment," Kunkel said. "Grouping both professions together does neither justice."

'I guess I can't go to the beach'

​Machry, who was in the audience the night of the visit from bylaw, said she is hoping to pull all of the performers who've performed in Hamilton together to rally for the two, and raise funds for their legal defence.

"I'm not sure what the thing was that put it over the edge," said Machry, the former dancer who was in the audience. "They were semi-nude, and they were sexy. I guess I can't go to the beach in my micro bikini and do my duck face."

She said the burlesque shows draw audiences that are mostly women.

"The female body is not a crime," she said. "It's not something to be afraid of. This is just a little glittery piece of escapism."

kelly.bennett@cbc.ca | @kellyrbennett