Divided Tenth Circuit: Sex-Specific "Topless" Nudity Ban Denies Equal Protection

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Free the Nipple v. City of Fort Collins, the Tenth Circuit upheld the district judge's preliminary injunction against a public-nudity ordinance that imposes no restrictions on male "toplessness" but prohibits women from baring their breasts below the areola, Fort Collins, Colo., Mun. Code § 17-142 (2015). The district judge dismissed the First Amendment challenge, but later found that the plaintiffs had a likelihood of success on their Equal Protection Clause challenge and that a preliminary injunction from enforcing the statute was warranted.

Writing for the majority, Judge Gregory Phillips relied heavily on the United States Supreme Court's most recent decision on equal protection and gender, Sessions v. Morales-Santana (2017).  The majority first concluded that as a gender-based classification, the ordinance merited intermediate scrutiny. While the city agreed the classification was gender-based, it had argued that only "invidious discrimination" on the basis of gender merited intermediate scrutiny. Judge Phillips noted that only when the classification is facially neutral but has disparate impact is the issue if "invidiousness" relevant.

The city also argued that women's and men's breasts had important physical differences. Judge Phillips considered several sources, adding that although the court was "wary of Wikipedia's user-generated content," it agreed with the district judge that there were inherent physical differences between men's and women's breasts, but "that doesn't resolve the constitutional question." Instead, the majority opinion stressed that the court should beware of such generalizations and their potential to "perpetuate inequality."

In its application of intermediate scrutiny, the majority analyzed the three interests asserted by the city:

• protecting children from public nudity,
• maintaining public order, and
• promoting traffic safety.

As to protecting children, the majority agreed with the district judge's finding quoting experts that the city's interest rested on negative stereotypes and citing Morales-Santana, the majority concluded that "laws grounded in stereotypes about the way women are serve no important governmental interest."

As to public order and traffic safety, the majority agreed that in "the abstract," these were both important governmental interests. However, the court stated that it suspected that the city was actually more concerned with the sex-object stereotype that the district judge had described, quoting experts. Moreover, it noted that the cases which the city relied upon held that the "nebulous concepts of public morality" actually justified the ban rather than interests in public order or traffic safety. The majority also concluded that the female-only toplessness ban was overbroad - and suggested that the city could "abate sidewalk confrontations by increasing the penalties for engaging in offensive conduct." In other words, the majority concluded that rather than criminalize women's behavior because it might incite some people, the city could criminalize people who acted on their incitement.

The majority candidly recognized that it had the "minority viewpoint" and other courts in divided opinions - including the Seventh Circuit - have rejected such challenges. 

In dissent, Judge Harris Hartz argued that intermediate scrutiny should not apply at all, in part because there are real differences between men and women as to their breasts, and that intermediate scrutiny should not be diluted by applying it in this instance. Instead, Judge Hartz argued that only rational basis should apply, which the ordinance easily passed.

The constitutionality of sex-specific nudity bans that apply to women's breasts is long-standing: our earlier discussion is here, linking to a discussion from Dressing Constitutionally about the 1992 New York case which the majority cites. Yet with the split between the Tenth and Seventh Circuits now apparent, it may be ripe for United States Supreme Court resolution.

[image: "Photograph of Gerald R. Ford, Jr., and Two Unidentified Men in Bathing Suits" via]