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Fourteenth Amendment

8th and 10th Circuits split over female topless ban

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The 8th U.S. Circuit Court of Appeals at St. Louis has upheld a Springfield, Missouri, ordinance that bans women but not men from exposing their nipples in public.

The appeals court affirmed a federal judge’s decision to toss an equal-protection challenge to the ordinance, the Springfield News-Leader reports. How Appealing links to the appellate opinion, filed Monday, which differs with a February decision by the 10th Circuit at Denver.

The American Civil Liberties Union of Missouri had filed the case on behalf of a group called Free the Nipple and two of its members. At issue was a March 2016 ordinance that banned the public display of the female breast “with less than a fully opaque covering of any part of the areola and nipple.” The ordinance made an exception for breastfeeding mothers.

The plaintiffs had asserted that the ordinance violates the equal protection clause of the 14th Amendment by treating men and women differently. But the 8th Circuit said it was bound by a 2003 decision upholding a similar ordinance in Lincoln, Nebraska.

“Springfield’s ordinance is substantially related to its important governmental interests in promoting public decency and proscribing public nudity to protect morals, public order, health and safety,” the appeals court said in its per curiam opinion. Judges on the panel were Lavenski Smith, Duane Benton and David Stras.

Most courts have upheld similar laws, including federal appeals courts based in Chicago and Richmond, Virginia, the 8th Circuit said. But the 10th Circuit ruled in February that a female-only topless ban in Fort Collins, Colorado, likely violates the equal protection clause. The 10th Circuit decision upheld a preliminary injunction that blocks the ordinance.

The ACLU will ask the full 8th Circuit to review the case, said Tony Rothert, legal director of the ACLU of Missouri, in an interview with the Springfield News-Leader.

The case is Free the Nipple v. City of Springfield.