A decision by Fort Collins, Colorado not to challenge a 10th Circuit court decision had the tacit effect of striking down ordinances against female public toplessness in six states, including Utah. Will a Salt Lake City court rule that a woman who went topless in her own home has to register as a sex offender? Tilli Buchanan got charged with three counts of misdemeanor lewdness for removing her shirt and bra while installing drywall in her home in the presence of her three stepchildren, a charge that arose out of an unrelated investigation by the Division of Child and Family Services.

Her attorneys want the charges quashed in light of the 10th Circuit decision, calling the potential outcome of registering as a sex offender “an unequal and unfair dichotomy,” since her husband was also topless at the same time:

Tilli Buchanan is facing criminal charges after she says her stepchildren spotted her topless in her home more than a year ago. Now, her attorneys are asking a judge to declare part of Utah’s lewdness law unconstitutional, arguing it treats men and women differently for the same conduct of baring their chests. “What’s important to look at, to see when you look at the statute, is that there’s part of it that says this part of a woman is inherently obscene and this part of a man isn’t,” said Leah Farrell, the senior attorney at the American Civil Liberties Union of Utah who argued on Buchanan’s behalf. “And that really sets up an unequal, unfair dichotomy.” Judge Kara Pettit did not rule from the bench following arguments in Buchanan’s case Tuesday in Salt Lake City’s 3rd District Court. “It’s too important of an issue” for an immediate ruling, she said, adding that she will hand down a decision within two months.

This is a curious case for a number of reasons, not the least of which is the prior involvement of the child-services investigators. This complaint did not come up directly, as the Salt Lake Tribune reports, but only after investigators were working on some other unspecified issue. The children’s mother insisted on pressing the matter of the toplessness after it came up, which raises some question as to whether she was behind whatever started the initial investigation. It sounds like this might have been part of an ongoing dispute over custody and child-raising issues between the divorced parents of the children.

Buchanan insists that she wanted to teach the children about feminism and equality, as well as avoid trapping irritants between her clothing and her skin during the construction work:

The children, ages 13, 10 and 9, asked why Buchanan wasn’t wearing a shirt. “Tilli explained that she considers herself a feminist and she wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing,” her attorneys argued in court filings earlier this year. After finishing the task, the couple showered, put on fresh clothes, and made dinner for the children, the court documents say.

The investigators tell a different story, but don’t forget that they didn’t investigate this at the time it happened:

But West Valley City prosecutors say the situation wasn’t quite that innocent. They accuse Buchanan of stripping down in front of her stepchildren after making a statement about how if her husband could take off his shirt, then a woman should be able to as well. They further allege that Buchanan, while “under the influence of alcohol,” had told her husband that she would only put her shirt back on if he showed her his penis. The date of the incident is also in dispute. Buchanan thinks it happened in fall 2016, while prosecutors put the timeframe as November 2017 and January 2018.

According to Buchanan, investigators never asked about this until earlier this year. That’s far too long to determine whether alcohol was really involved, and whether that matters is yet another point altogether. It’s tough to read the circuit court’s opinion and come to the conclusion that all one needs to do is add alcohol to eliminate equal-protection issues.

This brings us back to the issue at hand. If the governing federal ruling on lewdness ordinances in Utah is that they cannot be applied unequally between men and women in public, how can the court sustain an unequal application in the home? Both adult Buchanans were topless at the time of this incident; under Free The Nipple et al, both would have to be charged, or neither charged. The ACLU’s argument about inequality and unfair dichotomies certainly apply, but they also have pretty clear precedent on their side, too, plus a strong privacy case to be made.

While it’s perhaps odd and distasteful for many to think of a woman going topless in front of her children, there doesn’t seem to be any abusive or sexual element to the incident. After all, public toplessness involves potential exposure to family members as well, which the 10th Circuit didn’t exactly fret over in its equal application ruling. In fact, the court spent a good deal of time demolishing Fort Collins’ argument that female toplessness is damaging to children in and of itself, a point that seems to go directly to the issue in Tilli Buchanan’s case:

In support of this view, the district court relied on the testimony of Dr. TomiAnn Roberts, a psychology professor and witness for the Plaintiffs. At the preliminary-injunction hearing, Dr. Roberts testified that our society’s sexualization of women’s breasts—rather than any unique physical characteristic—has engrained in us the stereotype that the primary purpose of women’s breasts is sex, not feeding babies. The district court found Dr. Roberts credible and concluded, based on her testimony, that “the naked female breast is seen as disorderly or dangerous because society, from Renaissance paintings to Victoria’s Secret commercials, has conflated female breasts with genitalia and stereotyped them as such.” Free the Nipple, 237 F. Supp. 3d at 1133. But laws grounded in stereotypes about the way women are serve no important governmental interest. Morales-Santana, 137 S. Ct. at 1692–93; Virginia, 518 U.S. at 550. To the contrary, legislatively reinforced stereotypes tend to “create[] a self-fulfilling cycle of discrimination.” Hibbs, 538 U.S. at 736. Thus, the sex-object stereotype, according to Dr. Roberts, “serves the function of keeping women in their place.” Appellant’s App. vol. 3 at 192:11. And as the district court found, perpetuating the sex-object stereotype “leads to negative cognitive, behavioral, and emotional outcomes for both women and men.” Free the Nipple, 237 F. Supp. 3d at 1132. The court noted, for instance, that Dr. Roberts had testified about research linking the sexual objectification of women to the view that, at younger and younger ages, women are “appropriate targets of [sexual] assault.” Appellant’s App. vol. 3 at 194:22–23. Accordingly, we reject the City’s claim that protecting children from public nudity qualifies as an important governmental objective substantially served by the City’s female-only toplessness ban.

This goes directly to the supposition in this case that Tilli Buchanan did anything sexual or lewd in baring her chest, especially in her own home. The 10th Circuit explicitly rejected the basis for the claim that such displays are sexual and that they create damage as a result. Absent that, there’s no predicate for the complaint, let alone branding Buchanan a sex offender.

This looks like a dispute over parenting, which is better suited to arbitration or family court. At least until the Supreme Court overrules the 10th Circuit on Free the Nipple et al, this also looks like an obvious child-services and prosecutorial overreach.