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Ocean City Defends Ban on Topless Women at Fourth Circuit

The chief appellate judge compared the beachfront city’s effort to protect moral sensibilities to America’s defunct ban on interracial marriage.

RICHMOND, Va. (CN) — “Nobody has been killed by a breast,” an attorney for a group of women argued before a Fourth Circuit panel Wednesday as he assailed Ocean City, Maryland’s ban on topless women.  

Mechanicsburg, Pennsylvania-based lawyer Devon M. Jacob is representing a handful of women who approached the city in 2016 about its policy on toplessness in the coastal tourist destination. While no policy existed before local media picked up on the issue, before long Ocean City argued that media attention led to emails and phone calls supporting an effort to keep female breasts concealed. 

Courts around the country have fallen on both sides of the issue. Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, had tough questions Wednesday for Ocean City about the plaintiffs' equal protection claims. 

“This law came into effect about what they would do if they expressed their freedom on the beach?” the judge asked during the virtual hearing, referring to the ordinance that is less than five years old. “This moral sensibility was a recent vintage, right? It didn’t exist before someone asked the question?” 

“The mayor and City Council didn’t see a reason to legislate the issue until now, when someone came along to ask if they could go topless,” replied attorney Bruce F. Bright with the Ocean City-based firm Ayres, Jenkins, Gordy & Almand, who represents the city in the dispute. “That necessitated the adoption of the ordinance. But we don’t take the position that the moral sensibilities relate to recent events, it's just the issue surfaced.”

This dispute stems from the birth of the city’s exposed breast ban in 2017, which spurred a lawsuit from Chelsea C. Eline and four other women in January 2018.

“It is now considered normal for males to appear bare-chested in public, and the act is associated with power, strength and freedom,” according to the complaint filed by Jacob and attorney Jason Downs with Baltimore firm Downs Collins.

Eline and her co-plaintiffs argued ordinances like Ocean City’s deny women the same right to go topless as men in violation of the 14th Amendment, 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 last year, pointing to Fourth Circuit precedent that says protecting “moral sensibilities” is within a locality’s power. 

The three-judge panel of the Fourth Circuit was nearly silent during Jacob’s oral arguments, in which he said there is a lack of quality evidence to meet the standard of a city legislating moral sensibilities. He said the ordinance was the result of Ocean City officials getting comment from only "a few hundred people at best."

“The facts weren’t properly documented and it wasn’t clear what positive comments were lost along the way,” Jacob said.

He said the mayor and City Council members admitted they had no special training regarding public sensibilities, and claimed one member used their Catholic upbringing as grounds for developing a moral code. 

“The courts have guided us that we need to be careful that we’re not letting unlawful reasons creep into the law and the law is riddled with situations where that has occurred and the courts have reversed,” Jacob told the judges.

Bright, meanwhile, pointed to the lower court’s assessment that the elected nature of the officials empowered them to know the sensibilities of locals. Even if there were questions about their testimony, he said, court precedent protected a city’s ability to pass ordinances like the one at issue.

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“The U.S. Supreme Court has always said regulation of public nudity to advance the important governmental objective of moral sensibilities is constitutional,” he said. “The question here is whether exposure of the female breast can be included in the definition of nudity.” 

“It wasn’t until the 1970s when people of different races were not allowed to marry,” noted Gregory, who is Black. “Wasn’t that defended on moral sensibilities?”

“Obviously, it’s understood it was,” Bright replied. “But it was never proper.” 

“Did you say ‘obviously’ and ‘never was?'” the judge responded in a perturbed tone, adding that America's ban on interracial marriage was in place for a long time after the passage of the 13th Amendment, which abolished slavery and involuntary servitude.

“Understood, but in this case there hasn’t been any evidence presented" about a change in sensibilities over "the exposure of the female breast," Bright said.

U.S. Circuit Judges Diana Gribbon Motz, a Clinton appointee, and A. Marvin Quattlebaum Jr., a Donald Trump appointee, filled out Wednesday’s panel. The judges did not signal when or how they intended to rule. 

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. 

Wednesday’s hearing also comes amid 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 which required 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, a Barack Obama appointee, wrote in a 27-page opinion.

But two years earlier, a divided Seventh Circuit panel dismissed a woman’s appeal of Chicago’s public-nudity ordinance.

“Whatever her subjective intent, [plaintiff’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. 

“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.”

While the circuit split still exists, an appeal over a ruling by New Hampshire’s top court siding with a ban on the practice at a local beach was denied by the U.S. Supreme Court in January of last year. The denial was issued without comment, giving little 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 the 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.”

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