10th Circuit Affirms ‘Free the Nipple’ Movement in Fort Collins

DENVER (CN) – Women can bare their nipples in Fort Collins, Colorado without fear of prosecution, the Tenth Circuit affirmed on Friday.

Nonprofit organization Free the Nipple took the city to court over a local ordinance prohibiting women from baring their areolas, saying women were being held to a different standard than men. The city appealed to the 10th Circuit after the plaintiffs’ preliminary injunction was granted, a decision affirmed in Circuit Judge Gregory Phillips’ 27-page opinion.

“Laws grounded in stereotypes about the way women are serve no important governmental interest,” Phillips wrote.

Phillips was unmoved by the city’s concerns that bare-breasted women posed a danger to children and might distract drivers into crashing.

“The need to protect children arises, instead, from the city’s fear of topless women parading in front of elementary schools, or swimming topless in the public pool — scenarios that it described to the court,” Phillips wrote. “But laws in the neighboring cities of Boulder and Denver, and in many other jurisdictions, allow female toplessness and the city presented no evidence of any harmful fallout.”

In December, a Seventh Circuit panel split over a similar decision concerning Chicago’s public nudity ordinance, but ultimately favored the Windy City. Likewise, the Tenth Circuit decision included one dissenting opinion in favor of Fort Collins.

In a 17-page dissent, Circuit Judge Harris Hartz traced the boundary set by U.S. Supreme Court case law and concluded that Free the Nipple took the question into uncharted territory.

“Although one can debate about how much of our society’s view of the female breast is cultural and how much is biological (instinctual), the argument is certainly one that can be presented to a court,” Hartz wrote. “But it is not an argument like those in disputes that the Supreme Court has reviewed under heightened scrutiny—equal-protection cases that challenge the notion that males, or females, are not good at certain tasks or worthy of a benefit because of their inherent talents, capacities, or preferences.”

The ban on Fort Collins’ nudity ban will remain in effect through the conclusion of a jury trial.

The plaintiffs are represented by attorney Andy McNulty with Killmer, Lane & Newman.

Circuit Judge Mary Beck Briscoe rounded out the panel.

Enacted in 2015, Fort Collins’ nudity ban threatens to levy a fine up to $2,650 or a 180-day jail sentence against offenders who “knowingly appear in any public place in a nude state or state of undress such that the genitals or buttocks of either sex or the breast or breasts of a female are exposed.”

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