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Maryland City’s Female Toplessness Ban Survives in Court Ruling … For Now

April 13, 2020 by Tom Ramstack

Ocean City, Maryland, can continue to enforce its ban on topless women at its popular beach, a federal judge ruled last week.

There’s a fundamental difference between topless women and topless men that is supported by case law and tradition, Judge James Bredar wrote in his ruling.

“The Court finds that 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 wrote.

Five women who sued the city in 2018 said they should have the same right to toplessness as men.

They were motivated by an ordinance Ocean City officials passed in 2017 that banned public displays of specific body parts, namely male and female genitals and female breasts.

The dispute started when “Topfreedom” advocate Chelsea Eline asked city officials to instruct the beach patrol not to confront bare-chested women so they could sunbathe. Eline said she planned to go topless at the Ocean City beach.

Beach patrol leaders largely agreed with Eline’s request. They put out a memo to employees telling them not to “approach the topless women,” even if other beach-goers complained.

Some women interpreted the memo as an endorsement of toplessness. It also touched off a community debate that led to the emergency ordinance followed by the lawsuit.

The women plaintiffs argued the ban violates the Constitution’s Equal Protection clause, which is supposed to guarantee gender equality.

Ocean City officials argued their female toplessness ban protected their image as a family-friendly resort town. Their ordinance said female breasts in public were “still seen by society as unpalatable.”

Maryland Attorney General Brian E. Frosh advised Ocean City officials that their ban did not violate state or federal law.

Bredar largely agreed with the state attorney general in his federal court ruling. It said the ban is rationally related to protecting the public interest. He also said unequal treatment of male and female toplessness is supported by Supreme Court precedent.

The Supreme Court has decided that physical differences between men and women provide a valid basis for laws like Ocean City’s ban.

However, Bredar acknowledged that his ruling, as well as the Supreme Court precedent, might not stand the test of time.

“This Court questions whether laws which distinguish between men and women based on ‘public sensibilities’ can survive indefinitely,” Bredar’s opinion says. “Such amorphous concepts are vulnerable to prejudice and stereotypes grounded more in fear than in reality.”

For now, he said his only option was to follow Supreme Court guidance.

“Whether or not society should differentiate between male and female breasts is a separate inquiry from whether it is constitutional to do so,” Bredar wrote.

The laws in other states also are unsettled.

New Hampshire has an anti-toplessness law that was challenged by three women who were fined for exposing their breasts in public. In January, the U.S. Supreme Court declined to hear the case.

Fort Collins, Colorado, passed an ordinance banning female toplessness that also was challenged in a lawsuit. The Tenth Circuit federal appeals court in Colorado blocked enforcement of the ordinance last September by saying it unconstitutionally discriminates against women.

The ruling effectively gave women a right to go topless anywhere it is allowed for men within the jurisdiction of the Tenth Circuit, which includes Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

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