RICHMOND, Va. (CN) — Ocean City, Maryland, was justified in banning the baring of women's breasts based on its interest in protecting moral sensibilities, the Fourth Circuit ruled Wednesday.
The dispute started when a group of female beachgoers asked local officials if there was an existing policy against toplessness. There was not, but when the question was asked public outrage stirred and before long an ordinance banning female toplessness was passed.
An attorney for the women argued before the Richmond-based appeals court in May that the ban violates the equal protection clause of the U.S. Constitution because men are allowed to go topless.
But U.S. Circuit Judge Marvin Quattlebaum, a Donald Trump appointee, wrote in Wednesday's ruling that the claim is subject to a heightened level of scrutiny compared to other gender-based discrimination because of the important governmental interest the ordinance serves.
He pointed to 1991 Fourth Circuit decision in U.S. v. Biocic, a case involving a woman who removed the top of her two-piece bathing suit during a nature walk at a wildlife refuge. That opinion referenced a number of earlier decisions which all draw the same conclusion: “The important government interest is the widely recognized one of 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 citizens' anatomies."
“To be sure, public attitudes about gender and sexuality are constantly changing and evolving. But our precedent has not changed," Quattlebaum wrote, noting a three-judge panel can't overturn Biocic and it has not been struck down by the U.S. Supreme Court.
Despite the panel unanimously affirming a federal judge's decision to grant summary judgment to Ocean City, the women's attorney Devon M. Jacob of Mechanicsburg, Pennsylvania, found hope in a concurring opinion written by Chief U.S. Circuit Judge Roger Gregory which similarly cited Biocic.
“This case raises the question... of how we distinguish between the types of disparate treatment justified by a community’s public sensibilities and those that are not,” the Bill Clinton appointee wrote.
“Suppose the ordinance defined nudity to include public exposure of a woman’s hair, neck, shoulders, or ankles. Would that law not run afoul of the equal protection clause?” he opined. “While the ordinance here imposes a much narrower restriction on women, this is only a difference in degree, and not in kind.”
A concurring opinion in Biocic itself suggests there may come a time when “moral sensibilities” become more open to the idea.
“The time may well soon come, as it has already with the French and others, when the perceived public sense of outrage will wane,” then-U.S. Circuit Judge Francis Dominic Murnaghan Jr. wrote three decades ago. “[Jeanine] Biocic's action will then be classified as non-criminal, not because it was a bold blow for ‘liberty,’ but because it was too trifling — perhaps even childish — a matter for a community to spend time and energy addressing.”
Jacob said Gregory’s comments suggest now might be the time for Biocic to be reconsidered. He hinted at asking for an en banc rehearing, saying he and his clients “intend to provide the court with an opportunity to do so, and with a renewed chance to elevate women to equal status with men in Ocean City.”
U.S. Circuit Judge Barbara Keenan, a Barack Obama appointee, rounded out the Fourth Circuit panel.
Beyond the Ocean City dispute, the fight over female toplessness has been raging for decades. GoTopless.org has been acting as a network for advocates and tracking the issue since at least 2007, when a New York City-based artist reached a settlement with the city after she was arrested for baring her breasts in public. GoTopless, as well as the plaintiffs in the case against Ocean City, point to multiple other courts that have sided with topless advocates relying on the 14th Amendment’s equal protection provisions as grounds for their cause.
“As long as men are allowed to be topless in public, women should have the same constitutional right. Or else, men should have to wear something to hide their chests,” wrote Rael, a topless advocate who manages the GoTopless website.
The Fourth Circuit decision adds to a split in the federal appeals courts on the issue.
In February 2019, the 10th Circuit sided with the nonprofit organization Free the Nipple in its fight against a Fort Collins, Colorado, rule requiring women’s breasts to be covered in public.
“Laws grounded in stereotypes about the way women are serve no important governmental interest,” U.S. Circuit Judge Gregory Phillips, an Obama appointee, wrote in a 27-page opinion.
But two years earlier, a divided Seventh Circuit panel dismissed a woman’s challenge to Chicago’s public-nudity ordinance.
“Whatever her subjective intent, [Sonoku] Tagami's public nudity did not itself communicate a message of political protest,” U.S. Circuit Judge Diane Sykes, a George W. Bush appointee, wrote for the majority in the case of a woman who celebrated “GoTopless Day 2014” by walking the streets of Chicago naked from the waist up wearing opaque body paint on her bare breasts.
“The ordinance treats men and women alike by equally prohibiting the public exposure of the male and female body parts that are conventionally considered to be intimate, erogenous, and private,” Sykes added. “The list of intimate body parts is longer for women than men, but that’s wholly attributable to the basic physiological differences between the sexes.”
The circuit split may not be resolved anytime soon, as the Supreme Court last year turned away an appeal of a ruling by New Hampshire’s top court upholding a ban on nudity at a local beach. The denial was issued without comment, giving no insight into how the justices could rule in the future.
But some legal observers say it's time for them to answer the question, and the Ocean City dispute could be the case that gets Supreme Court review.
Kathryn Campbell with the Minnesota Law Review wrote in April of last year that the high court must finally resolve the issue in the “interest of fairness for not only cisgender women but also transgender and gender-nonconforming individuals."
"The United States has archaic, male-centric views on female nudity, as further evidenced by various local ordinances that ban public female toplessness,” she wrote in an article entitled "Tits Up," which points to the 14th Amendment and the circuit split as grounds for the removal of such bans. “While some courts have taken progressive approaches to such outdated laws, most remain rooted in the belief that such laws are instrumental in protecting society.”Follow @@BradKutner
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