The Denver Post

Nipple case backed by 14th

A federal judge allows a lawsuit against Fort Collins to proceed.

- By Tom McGhee

A federal judge in Denver has denied a motion to dismiss a lawsuit against Fort Collins that claims an ordinance that bars women from exposing their breasts in public violates the Constituti­on and is rooted in outdated puritanica­l values and discrimina­tion.

U.S. District Judge R. Brooke Jackson said the plaintiffs — Free the Nipple, an associatio­n of Colorado residents who advocate for gender equality; group founder Brittiany Hoagland; and group member Samantha Six — have “at the very least adequately stated a claim under the 14th Amendment Equal Protection Clause.”

Under that amendment, Free the Nipple alleges Fort Collins’ ordinance is unconstitu­tional because a difference between the sexes on which it is premised is “used to perpetuate stereotype­s about girls and women,” namely that society considers they and their breasts primarily objects of desire.

The judge did dismiss a second claim in the associatio­n’s suit based on the First Amendment, a claim that the message of their nudity is part of their protest’s message about “the allegedly sexist nature of certain laws.”

In that case, Jackson found public nudity is not inherently expressive of any particular message.

“This is a great victory for women’s rights and equality under the law,” David Lane, lawyer for Free the Nipple, said in an e-mail Thursday.

The Fort Collins City Attorney’s Office welcomed the partial dismissal, on the plaintiff ’s First Amendment claim, and said it looks forward to arguing against the plaintiff ’s remaining claims.

“The city is glad to see that the judge has narrowed the issues in this case by dismissing the First Amendment claim,” said City Attorney Carrie Daggett.

Hoagland brought the ordinance to the attention of the Fort Collins City Council last year. She wanted a change made to the language so that men and women would be free to show their breasts in the city.

The council rejected the idea, but approved tweaking the current law to allow breastfeed­ing and clarify how the ordinance applies to children younger than 10. That change defined the breast as beginning at the top of the nipple.

Section 17-142 of the Fort Collins code of ordinances discrimina­tes against women by “making it a crime to show their breasts and/or nipples in any place where they might be viewed by others while allowing boys and men to show their breasts and/or nipples at any time or place without fear of arrest or prosecutio­n,” the lawsuit said.

The group believes that any law containing language to the effect of “women are prohibited from” is sexist and, therefore, unconstitu­tional.

The modified version “continues to criminaliz­e women who appear at public places with their breasts and nipples exposed,” the lawsuit said.

Thirty states, as well as Denver, Boulder and New York City, have recognized a woman’s right to appear topless in public, the suit says.

The lawsuit asks for an injunction to stop enforcemen­t of the law and declare it unconstitu­tional.

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