Free the Nipple Faces Off Against Fort Collins at 10th Circuit

DENVER – The 10th Circuit on Wednesday heard arguments to decide whether the U.S. Constitution’s Equal Protection Clause applies to women’s nipples – at least as far as a city’s ban on showing them in public is concerned.

The Colorado city of Fort Collins appealed a federal judge’s ruling that bars enforcement of a local ordinance criminalizing women who showed their breasts in public.

The local chapter of Free the Nipple sued the northern Colorado city in 2015, demanding the law – which imposes a fine or jail sentence on any “person (who) shall 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” – be struck down as unconstitutional.

More than 30 states and a dozen Colorado municipalities currently address women’s right to appear topless in public. Free the Nipple’s protests led to a town hall meeting, after which the rule was updated to include only women over the age of nine and to exempt breastfeeding mothers.

While a federal judge blocked the ordinance this past February – effectively banning Fort Collins from banning nipples – the city’s attorney argued that the ordinance didn’t actually cause any harm.

“The Supreme Court has been very clear over the years that invidious discrimination is a fundamental requirement of the Equal Protection Clause in the 14th Amendment,” said Andrew Ringel, an attorney with Hall and Evans. Rather than intend to cause harm, “what the ordinance does is say both genitalia of men and women must be covered. What it does say is women have breasts that are also considered private parts and must be covered,” he added.

“If you’re speaking about the concern of children seeing breasts, what do you do with the breast feeding clause?” asked Circuit Judge Mary Beck Briscoe. “Why should it be shocking to see a breast in one context or another? A breast is a breast.”

Ringel explained that state law requires women be allowed to breastfeed and directed the conversation back to the city’s concerns.

“If a woman wanted to parade topless in front of the elementary school when the kids are coming out she could,” Ringel said. “It’s a legitimate concern of the city to avoid this spectacle.”

Briscoe then asked, “We need this ordinance to protect women who would go topless?”

Ringel stressed the case is a simple one, and asked the appeals court not to make the issue about equal opportunity or women – a point that drew disagreement from Free the Nipple’s attorney Andy McNulty.

“It was clear that this ordinance was enacted to criminalize women. These laws are enacted because women’s breasts are seen as inherently sexual,” said McNulty, who added the city’s ordinance equates the female breast to pornography.

“This says that women’s breasts are inherently sexual and that women should dress a certain way,” McNulty said. “They believe so based on nothing but their opinions. There is no evidence that women’s breasts are inherently sexual.”

Still, Briscoe pressed the question of invidious discrimination.

“You’re not hindering anything of consequence so how is this a constitutional right?” she asked.

“What is the consequence of not being able to eat at a lunch counter?” McNulty retorted, likening the case to those in history that allowed women to enter the workforce and the courts.

McNulty is with the firm Killmer, Lane, and Newman.

Circuit Judges Gregory Phillips and Harris Hartz joined Briscoe on the panel. They did not indicate when they would rule in the matter.

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