ST. GEORGE — A recent federal ruling strikes down a city ordinance banning women from being topless in public.
After three years and more than $300,000 spent on the “Free the Nipple” campaign, the 10th Circuit Court of Appeals struck down a topless ban in Fort Collins after a district court judge ruled it unconstitutional, violating the equal protection clause of the Fourteenth Amendment, since it only applied to women.
Utah is one of six states that fall under the jurisdiction of the 10th Circuit Court, which also includes Colorado, Kansas, New Mexico, Oklahoma and Wyoming.
The 10th Circuit ruling effectively means that topless bans in those six states may no longer be enforceable, but ordinances will still need to be challenged individually in order to be removed from the books in a given municipality.
Mayor Jon Pike told St. George News the city “pays attention to any ruling that comes down from the 10th Circuit Court,” adding the issue will be discussed with the city attorney. The ramifications of the court’s decision remain unclear at this point, both for St. George and for Utah as a whole.
“The 10th Circuit Court has made a ruling,” Pike said. “We’ll cooperate and are resolved to work within the framework of the appellate system we have in place.”
The original case was filed by Free the Nipple and two women, Brittiany Hoagland and Samantha Six, in May 2016, when they sued the city of Fort Collins for their right to go topless in public.
The 10th Circuit Court decision was issued in February, at which point Fort Collins filed a series of continuances to appeal the decision. In the end, however, the city opted not to continue fighting the decision.
According to the lawsuit, the nudity ban “criminalizes women who appear in public” with their breasts exposed.
“(The law) is a sexist ordinance that is based on antiquated social mores; justification for the ordinance is rooted in outdated nineteenth-century puritanical values and discrimination, nothing more,” they argued. “Men continue to enjoy the ability to engage in this exact same behavior without the fear of criminal prosecution.”
Under the former ordinance in Fort Collins, females over age 10 were not allowed to knowingly expose their breasts in any public place or on certain private properties that could be viewed from a public area, or they could face misdemeanor charges and be fined up to $2,650, face up to 180 days in jail, or both. The ban did not extend to women breastfeeding in public.
The 10th Circuit Court ruled that the city’s claim that the ban was designed for the purpose of protecting children was not derived from the anatomical differences between men’s and woman’s breasts, but instead, “from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects,” Circuit Judge Gregory Phillips wrote in the decision.
The decision also said Fort Collins “presented no evidence of any harmful fallout” should the nudity ban be lifted.
The justices also cited Dr. Roberts’ testimony, which stated that the naked female breast “is seen as disorderly or dangerous because society, from Renaissance paintings to Victoria’s Secret commercials, has conflated female breasts with genitalia and stereotyped them as such.”
District Court Judge Harris L. Hartz disagreed with the ruling, and in his dissenting opinion, said that nudity laws in general “may be justified as reducing or preventing antisocial behavior caused by indecent exposure,” adding the laws are designed to prevent behaviors such as assault, youth corruption or even “distraction from productive activity.”
Ed. note: On first publish, this report inaccurately described the outcome of the ruling as allowing women in each state to go topless, regardless of lewdness laws in individual cities. The report has been clarified to indicate that the ruling merely opens the legal avenue to challenging similar ordinances throughout the six affected states.
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