A lawsuit challenging the City of Fort Collins’ topless ban has reached the 10th Circuit Court of Appeals. Brittiany Hoagland, founder of the Fort Collins chapter of Free the Nipple, and group member Samantha Six are listed alongside the organization itself as plaintiffs in the lawsuit. The 10th Circuit heard oral arguments earlier this month after the federal district court granted a preliminary injunction against the city.
The original complaint brought by the plaintiffs cited the First Amendment, but that argument was dismissed at the federal district court. Plaintiffs argued the ordinance violates the equal protection clause of the 14th Amendment and Colorado’s equal rights amendment. The city declined to comment on the case.
Fort Collins’ ordinance states that “no female who is 10 years of age or older shall knowingly appear in any public place with her breast exposed below the top of the areola and nipple while located” in public. In August 2015, Hoagland protested the ordinance by standing shirtless (but with her nipples covered) on the street in Fort Collins near Colorado State University. Punishment for violation of the ordinance includes up to a $2,650 fine, 180 days in jail or both.
After Hoagland’s protest, the city discussed modification and repeal of the ordinance at a city council meeting in October, but the revised ordinance that passed in November kept the language prohibiting women from showing their breasts in a public space. Both versions of the law exempt breastfeeding mothers, an exception that Killmer Lane & Newman associate Andrew McNulty said is “telling.”
“It’s saying when a breast is out for breastfeeding, that is fine, but a normal breast is just sexual,” he said. “It kind of shows how the city views breasts as sexual objects unless they’re doing something that traditionally has been viewed as nonsexual.”
Attorney for the City of Fort Collins Andrew Ringel stated that in the case of Loving v. Virginia, the U.S. Supreme Court held that the 14th Amendment requires “invidious” discrimination. Ringel said that although the ordinance differentiates between male and female breasts, the distinction did not reach the level of discrimination. He also cited concerns about topless women in public when children are present.
Ringel argued that a woman choosing to go topless and a mother breastfeeding are not the same. Judge Mary Beck Briscoe pushed back on that point during oral arguments.
“It seems to be counterintuitive to say children are shocked at one point but not at the other when we’re talking about the same thing,” Briscoe said. “A breast is a breast, is it not?”
Ringel argued the city’s ordinance is fundamental with regard to maintaining public order and preventing “societal disruption.”
“This is not about equal opportunity. This is not about the social status of women. This isn’t about the legal status of women,” Ringel said during arguments. “The only restriction that exists is a ban on female toplessness.”
In an interview with Law Week, McNulty said that the case isn’t trivial because the issue of discrimination is always harmful.
“What’s the harm of having separate drinking fountains for African Americans and white folks? I think it’s important to emphasize that discrimination is never trivial and there are real life consequences for it every day,” he said.
The original complaint cites 10 municipal codes in Colorado, including Denver and Boulder, concerning public nudity that do not criminalize women who choose to appear topless in public. Free the Nipple has held several protests in cities across the nation. A handful of states including Florida, New York and Ohio have contended with what constitutes public nudity and indecency. Several cases have ruled in favor of women going topless in public, but bans in other cities have been upheld.
In November, the 7th Circuit Court of Appeals ruled in favor of Chicago’s ordinance barring toplessness in public for women.
Although the pending decision from the 10th Circuit could go either way and appeal to the U.S. Supreme Court is still possible, McNulty said he is “cautiously optimistic” about the outcome.
“We’ve seen time and again throughout history that all those predictions of the parade of horribles of what would happen if women are given more rights, they just don’t come true. I think we’ll look back on this decision and we’ll see … that our society became better because of it.”
— Kaley LaQuea