BALTIMORE, Md. (CN) — A federal judge has upheld a ban on women going topless at one of the East Coast’s most popular beach destinations, rejecting arguments from five women that a local ordinance is sexist.
While topless advocates had hoped to see the 2017 ban in Ocean City, Maryland, overturned, both U.S. Supreme Court precedent and the protection of public sensibility were cited as grounds for its legality in Tuesday’s ruling.
“It is now considered normal for males to appear bare-chested in public, and the act is associated with power, strength and freedom,” attorney Jason Downs with the Baltimore firm Downs Collins wrote when he filed a lawsuit on behalf of Chelsea C. Eline and four other women in January 2018.
The plaintiffs argued laws like Ocean City’s ordinance that deny women the same right to go topless violate the U.S. Constitution by causing “disparate social and legal treatment” for women and creating “feelings of body and gender shame in young girls.”
But Chief U.S. District Judge James K. Bredar in Baltimore disagreed, pointing to Fourth Circuit precedent that says protecting “moral sensibilities” is within a locality’s power.
“Whether or not society should differentiate between male and female breasts is a separate inquiry from whether it is constitutional to do so,” the Barack Obama appointee wrote in his 19-page opinion. “Protecting the public sensibilities from the public display of areas of the body traditionally viewed as erogenous zones—including female, but not male, breasts—is an important government objective.”
Bredar also noted the U.S. Supreme Court “has consistently maintained that physical differences between men and women — as opposed to stereotypes about men or women provide a constitutionally sound basis for laws which treat men and women differently.”
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 they arrested her for baring her breasts in public. GoTopless, as well as the lawsuit against Ocean City, point to multiple other courts that have sided with topless advocates who cite 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 beach town’s ban on topless women came out of a unanimous city council vote at the start of the 2017 season. Tuesday’s ruling quotes Ocean City Mayor Richard Meehan’s response to Eline’s lawsuit, saying he respected the “desire to express what rights she believes she may have” but the town is a family-friendly vacation destination.
“We intend to do whatever is within our ability to also protect the rights of those families that visit us each year,” he said after a vote approving the ban.
Tuesday’s ruling follows a December 2018 denial of a request for an injunction against the ban.
City attorney Bruce F. Bright defended the ordinance after the injunction denial.
“The ordinance is an expression of the views and aspirations of the community as determined by Ocean City’s duly elected representatives, and it serves the important governmental objective of protecting public sensibilities on the matter,” Bright told the Washington Post at the time.
Neither Bright nor Downs responded to requests for comment Wednesday morning.