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

Five Maryland women sued the resort town, challenging its 2017 ordinance because the measure permits men, but not women, to be shirtless on the beach. Ocean City officials defended the rules as necessary to maintain the town’s family-friendly image and said bare female breasts in public were “still seen by society as unpalatable.”

AD

AD

Even as the judge upheld the ban, he noted that the Supreme Court’s treatment of sex and gender has evolved substantially through the decades.

“This Court questions whether laws which distinguish between men and women based on ‘public sensibilities’ can survive indefinitely,” Bredar wrote in the opinion published Tuesday.

“Such amorphous concepts are vulnerable to prejudice and stereotypes grounded more in fear than in reality.”

The judge also acknowledged that his opinion is at odds with a ruling from the Colorado-based federal appeals court, which blocked a similar Fort Collins ordinance barring public female, but not male, toplessness.

Nevertheless, Bredar said his decision is consistent with past rulings from the U.S. Court of Appeals for the 4th Circuit, which reviews appeals from Maryland. The Supreme Court, he noted, has also maintained that physical differences between men and women — as opposed to stereotypes about men and women — can provide a valid basis for laws that treat men and women differently.

In January, the Supreme Court refused to take up a challenge to a similar New Hampshire law in a case brought by three women fined for exposing their breasts in public.

AD

AD

The Ocean City case began with “topfreedom” advocate Chelsea Eline, who asked town officials to give the beach patrol and police clear instructions so women could sunbathe bare-chested without confrontation. The beach patrol issued a memo instructing employees not to “approach the topless women” even if asked to do so by beach patrons.

When the memo was interpreted by some to allow female toplessness on the beach, Ocean City officials quickly passed an ordinance in June 2017 banning bare female chests in public.