Fort Collins' topless ban unconstitutional, appeals court rules

Nick Coltrain | The Coloradoan

Women can't be banned from going topless, according to a Friday ruling by the federal 10th Circuit Court of Appeals.

The appeals court judges ruled 2-1 in favor of Free the Nipple activists who sued the city of Fort Collins over its ban on females appearing topless in public. The court ruled that ordinances that target a group based on gender — such as banning women specifically from going topless, while allowing men to do so — is a violation of the equal protections clause of the U.S. Constitution, attorney Andy McNulty said.

Judges Gregory Phillips and Mary Beck Briscoe ruled in favor of Free the Nipple, with Judge Harris Hartz dissenting. It has been more than a year since the judges heard arguments in the case.

"I think this is a pretty historic moment in the women's rights movement," McNulty said in an interview. "Since the beginning of the 20th century, court decisions have slowly but surely chipped away at the idea that women should be stereotyped by their sex and gender. This is the next step to make sure we don't stereotype women and women have equal rights in this country."

"I wouldn't be surprised if Fort Collins appeals this to the Supreme Court," McNulty said. "But in the moment, it feels pretty great. It always feels great to be on the right side of history. It's a historic date not just for my clients, but women all across the country.

"Anytime someone stands up and says, 'Women's rights are equal rights,' is a good day."

City of Fort Collins spokesperson Emily Wilmsen said City Council will decide next steps. The city spent $71,000 so far defending the ordinance in court.

"All we can say right now is that the city is reviewing the implications of the court’s ruling," she said.

The city argued in court that women going topless could prompt public disorder, distract drivers and expose children to public nudity. The court rejected those claims, noting that children may already be exposed to topless women if they pass a mother breastfeeding in public — an act that is specifically legal under city code. The judges further argued the ban "creates a gender classification on its face" and furthers gender stereotypes.

"Laws grounded in stereotypes about the way women are serve no important

governmental interest," Phillips wrote in the opinion of the majority, citing prior rulings. "To the contrary, legislatively reinforced stereotypes tend to 'create' a self-fulfilling cycle of discrimination.'”

The court acknowledged that men's breasts and women's breasts serve different functions and have inherent physical differences. Those differences didn't pass muster for banning one gender from displaying a bare chest in public view but allowing the other to do so, they ruled.

"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," the majority wrote.

In his dissent, Hartz called the ordinance banning exposed female breasts "part of a long tradition of laws prohibiting public indecency" and an attempt to reduce anti-social behavior, including the objectification of the female breast.

"The Ordinance does not discriminate against women on the basis of any overbroad generalization about their perceived 'talents, capacities, or preferences,'" Hartz wrote. "To the extent it distinguishes between the sexes, it is based on inherent biological, morphological differences between them. Those differences are not stereotypes."

Other federal appeals courts have ruled against Free the Nipple activists, creating a patchwork of enforced and invalidated laws throughout the country, McNulty said. The 10th Circuit Court's ruling applies to Colorado, Wyoming, New Mexico, Kansas, Utah and Oklahoma.

The fight in Fort Collins started in the summer of 2015, when activist Brit Hoagland started protesting the city's ban on female toplessness.

Later that year, the City Council updated its public indecency ordinance but ultimately left the ban in place.

Hoagland and fellow Free the Nipple activist Samantha Six sued the city in May 2016.

A district court granted a preliminary injunction in February 2017, meaning the city hasn't been able to enforce the ordinance since then.

The 10th Circuit heard oral arguments in the case in January 2018 and has been deliberating since then.

The city's ordinance prohibited women from knowingly exposing their breasts in public, with certain exceptions, like breastfeeding.

This story has been updated to include the amount spent by the city defending the ordinance in court and to correct an omission on the states covered by the 10th Circuit Court of Appeals. It also includes Oklahoma.