The Fourth Circuit recently upheld an Ocean City, Maryland, ordinance prohibiting women from exposing their breasts in public, including on the city’s popular public beaches. The lawsuit arose in 2017, when four local women in the small tourist town asked the City if there was any law prohibiting them from going topless at the beach. There was no such law on the books at the time, but in response, the city passed an ordinance banning public nudity. The ban specifically prohibits the baring of female breasts, but does not prohibit male toplessness.
The women sued, claiming the ordinance violated their right to equal protection under the Fourteenth Amendment of the federal constitution, arguing that either everyone should have to cover their breasts, or everyone should have the option of going topless.
Moral Sensibilities vs. Unequal Treatment
It was uncontested that the ordinance treats men and women differently based solely on gender: men can go topless in Ocean City; women cannot. The City argued, however, that protecting the “moral sensibilities” of city residents justified the unequal application of the law. The Fourth Circuit agreed, writing that the government’s interest in protecting these moral sensibilities outweighed concerns over treating male and female toplessness unequally. The panel cited a 1991 decision from their own court, which upheld a similar female toplessness ban as binding precedent on the grounds that the government was obligated to protect “that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones [which] still include (whether justifiably or not in the eyes of all) the female, but not the male, breast.”
When the women responded that the mayor and city council had not shown that going topless would actually offend the moral sensibilities of the public, the court disagreed, saying that by virtue of them representing the City, the mayor and council had the authority to determine when something is morally offensive to their constituents.
The same year as the Maryland ruling, a divided Seventh Circuit panel held that Chicago’s public-nudity ordinance also passed constitutional muster. On the other hand, in 2019, the Tenth Circuit overturned a Fort Collins, Colorado, rule requiring women to cover their breasts in public.
As yet, the Supreme Court has declined to weigh in on the issue. It turned down the review of a 2020 appeal in which the New Hampshire Supreme Court upheld the arrest and conviction of three women charged with public nudity who appeared topless as part of advocacy efforts on behalf of Free the Nipple, a non-profit organized to promote female toplessness across the country. As SCOTUS declined without comment, there’s no real indication of how it would rule on such a case. But with the split in circuit courts, the recent Fourth Circuit opinion may be an ideal case for the Supreme Court to take up.
What’s Next for 10th Circuit Toplessness? (FindLaw’s U.S. Tenth Circuit)
Tenth Circuit Upholds Free the Nipple Ruling (FindLaw’s U.S. Tenth Circuit)
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