Editor's note: This story was updated at 11:20 a.m. Wednesday to reflect the full amount of money the city of Fort Collins spent on the lawsuit.

Fort Collins hammered the last nail in the coffin of the now-defunct topless ban that inspired a three-year, $322,000 “Free the Nipple” lawsuit.

City Council on Tuesday agreed to remove references to the 2015 policy from Fort Collins’ public nudity code. Language barring women and girls over age 10 from exposing their breasts in public will officially disappear from city code Sept. 17. But the ban has been unenforceable since February 2017, when a district court judge ruled it violated the 14th Amendment because it applied only to women.

The legal battle over Fort Collins’ topless ban next headed to the 10th Circuit Court of Appeals, which ruled 2-1 against the policy in February 2019.

“We’re left, as the district court was, to suspect that the City’s professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects,” Judge Gregory Phillips wrote in the majority opinion.

That left Fort Collins with the option of pursuing a hearing before the U.S. Supreme Court, although there was no guarantee the high court would agree to review the case. City Council voted 4-3 in May to stop defending the contested portion of the ordinance in court. The city spent about $120,000 on its defense, city attorney Carrie Daggett said Wednesday, and negotiated a $202,000 payment to cover the legal fees of plaintiffs Brit Hoagland and Samantha Six.

Council had until June 17 to reverse course and appeal to the Supreme Court, but the case officially closed July 24 with a permanent court order stating Fort Collins can’t enforce a topless ban that applies only to women and girls.

Still, council’s decision to remove the ban from city code wasn’t without controversy. Council member Ken Summers pulled the item from council’s consent agenda, which allowed community members to comment and council members to speak about the code change at greater length.

About eight people, including two pastors and former City Council member and mayor Ray Martinez, encouraged council to keep the language. Martinez said council should continue defending the topless ban because a Supreme Court decision on the case would have national significance.

Others said the legality of women being topless in public infringes on Fort Collins’ wholesome community values. They said they fear the ordinance change would make it legally defensible for women to expose their breasts in schools or places of worship. (Deputy City Attorney John Duval said representatives of churches, schools and other institutions are entitled to ask people to leave buildings, and those individuals can be cited for trespassing if they refuse.)

Fort Collins resident Paul Vencel said he would feel sexually harassed if he saw a topless woman in public.

“Where are my rights being defended in this discussion?” he said. “Don’t I have the right to go down the street without seeing such things? … If the current language is struck, anybody can do whatever they want, wherever they want, and they can force everybody to watch.”

Fort Collins Police Services fielded two calls for service regarding a woman exposing her breasts between February 2017 and September 2019, FCPS spokesperson Kate Kimble said. State law prohibits women from publicly exposing their breasts with the intent to arouse or satisfy the sexual desires of another person.

Summers, Mayor Wade Troxell and council member Susan Gutowsky said they agree with the community members who urged them to continue fighting for the topless ban, but they said the door on the legal defense has already closed.

“As far as I know, we made a decision, a settlement has been reached, and what’s done is done at this point,” Summers said. “And we’re forced, in a sense, to live with any consequences that may emerge.”

Gutowsky, who voted with Troxell and Summers in May to continue defending the topless ban, said the case had implications for other communities throughout the U.S. that have adopted similar policies. While communities in Colorado, Wyoming, New Mexico, Kansas, Utah and Oklahoma are bound to the 10th Circuit Court of Appeals ruling, other appeals courts have reached different conclusions in similar cases.

"The thing that bothered me was that we had established an ordinance that I believe reflected the values of our community,” Gutowsky said. “Then two young women came and defied that, and three judges decided the case for us, and we lost the ordinance that reflected our values.”

Council members Emily Gorgol, Ross Cunniff and Julie Pignataro and Mayor pro-tem Kristin Stephens also voted to take the topless ban out of city code.

“I supported the appeal of (the district court ruling regarding) the original ordinance that we wrote, but it became clear to me that it wasn’t going to go where we wanted it to go and was going to continue to cost the city large amounts of money,” Cunniff said. “We did our best. It didn’t work, and so we should simplify.”

Jacy Marmaduke covers government accountability for the Coloradoan. Follow her on Twitter @jacymarmaduke. Support stories like this one with a digital subscription to the Coloradoan.