Ban on baring of female breasts is likely unconstitutional, 10th Circuit rules

Constitutional Law

A federal appeals court has ruled a female-only topless ban in Fort Collins, Colorado, likely violates the equal protection clause.

The 10th U.S. Circuit Court of Appeals at Denver ruled Feb. 15, report Westword, Courthouse News Service and the Denver Post. How Appealing links to the 2-1 decision.

The decision upholds a preliminary injunction that blocks the ordinance. The law bars women but not men from baring their breasts in public below the top of the areola and nipple, except for girls younger than age 10 or women who are breastfeeding.

The city had argued that the ordinance was justified because of the sexual nature of the female breast and because of concerns that bared breasts could lead to distracted driving and harm to children.

But the nearby cities of Boulder and Denver allow female toplessness, and there is no evidence of harmful fallout, the appeals court majority said in an opinion by Circuit Judge Gregory Phillips.

“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,” Phillips wrote.

The court cited testimony by a psychology professor who said society’s sexualization of women’s breasts has engrained the stereotype that the primary purpose of women’s breasts is sex, rather than feeding babies. “But laws grounded in stereotypes about the way women are serve no important governmental interest,” Phillips said.

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Circuit Judge Harris Hartz dissented. “The Supreme Court has been at the forefront of the march for gender equality. But it has never suggested that men and women are identical, or that the law cannot recognize their inherent differences,” he wrote.

The 10th Circuit decision follows a contrary ruling earlier this month by the New Hampshire Supreme Court, which upheld a topless ban in the city of Laconia.

The 7th Circuit at Chicago also had upheld Chicago’s topless ban in a November 2017 decision.

The case is Free the Nipple-Fort Collins v. City of Fort Collins.

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