Judge pondering legality of topless women
A federal judge in Maryland heard arguments Friday about “whether public sensibilities are accurately reflected” in an Ocean City ordinance that bans bare female chests in public places.
The hearing was the latest in the legal battle between the popular resort destination arguing it wants to protect its family-friendly image and a Maryland woman who says the ban violates equal protection laws.
Chelsea Eline — who describes herself as a “topfreedom” advocate — filed a complaint in federal court this year challenging an “emergency ordinance” that Ocean City officials passed in summer 2017 barring bare breasts in public. Lawmakers approved the legislation, saying bare breasts in public “is still seen by society as unpalatable” and that the ordinance was designed to “protect public sensibilities.”
Lawmakers passed the public nudity ban after Eline, a regular beachgoer who runs a blog titled Breasts are Healthy, asked the city to give the beach patrol and police officers clearer instructions so women could sunbathe bare-chested without confrontation.
The Maryland attorney general’s office has said the city’s law is legally sound.
But Eline argues that allowing men to go without shirts and not women is sexist. Women have the legal right to be bare-chested in public — and for purposes other than breastfeeding — anywhere men are, she and other plaintiffs in the lawsuit argue.
“The gender classification does not further an important government interest but, rather, codifies long-standing discriminatory and sexist ideology in which women are viewed as inherently sexual objects without the agency to decide when they are sexual and when they are not,” according to the federal complaint filed by attorneys representing Eline and four other women.
Eline’s attorneys in court filings indicated they would call a professor and director of the Center for Sexual Health Promotion from Indiana University as an expert on their contention.
The issue reached a boiling point in May 2017 when the beach patrol issued a memo directing staff members to document complaints about bare-chested female sunbathers by filling out “minor incident” forms.
The memo also instructed the beach patrol not to “approach the topless woman, even if requested to do so by the complainant or other beach patrons.”
The debate over bare breasts in public is not limited to Ocean City.
A federal appeals court in Colorado heard oral arguments this year in a similar case in which the city of Fort Collins is challenging a lower-court ruling that blocked officials from enforcing their ordinance that prohibits women, but not men, from exposing their chests in public. A lowercourt judge said the city ordinance violates the equal protection clause of the 14th Amendment that generally prohibits the government from discriminating between the genders. The initial lawsuit against the city was filed by a genderequity advocacy group.
An opinion in the Fort Collins case is pending.
In a previous case out of the U.S. Court of Appeals for the 4th Circuit from 1991, the court said there was no denial of equal protection.
The court said the government has an interest in “protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizen’s anatomies that traditionally in this society have been regarded as erogenous zones. These still include (either justifiably or not in the eyes of all) the female, but not the male, breast.”