TITS UP: WHY IT’S TIME FOR THE SUPREME COURT TO RULE ON TOPLESS ORDINANCES

By: Kathryn Campbell, Volume 104 Staff Member

The United States loves to exercise control over cis-women’s bodies.[1] Notably, both federal and state governments seemingly fear the exposure of a cis-woman’s exposed “erogenous” areola—although men have them as well.[2] Perhaps the most archaic way in which governments within the United States attempt to regulate women’s bodies is through public-nudity ordinances that prohibit the exposure of a female’s breasts, with limited exceptions for breastfeeding.[3] Not only do such laws fetishize and sexualize cis-women’s bodies, they do not define, understand, or recognize the existence of transgender or gender nonconforming bodies.[4] And while American jurisprudence regarding gender—or sex-based toplessness laws is no stranger to constitutional challenges—particularly involving the Equal Protection Clause of the Fourteenth Amendment—the Supreme Court still refuses to grant certiorari to hear cases involving the exposure of female nipples.[5]

I.  EQUAL PROTECTION AND TOPLESS ORDINANCES

Topless ban ordinances historically face equal protection constitutional challenges. In adjudicating the Equal Protection Clause in sex-based discrimination cases, the Supreme Court has traditionally held that any law rooted in sexual discrimination must “at least . . . serve[] important governmental objectives” and “the discriminatory means employed [must be] substantially related to the achievement of those objectives.”[6] The Court further expanded this by noting that the test must be applied “free of fixed notions concerning the roles and abilities of males and females” and that “care must be taken in ascertaining whether [the statute] reflects archaic and stereotypic notions.”[7]

In Lilley v. New Hampshire, the defendants were charged with violating a city ordinance that criminalized  “the showing of the female breast with less than a fully opaque covering of any part of the nipple,” after they had attempted to practice yoga topless on a local beach.[8] At trial, the defendants moved to dismiss the case, arguing that the ordinance violated their equal protection rights.[9] The district court denied the motion on grounds that the ordinance “creates no violation of the Equal Protection clause as it treats all females equally.”[10] The New Hampshire Supreme Court, on deciding to apply “intermediate scrutiny,” found that the local ordinance “does not classify on the basis of gender. The ordinance prohibits both men and women from being nude in a public place. . . . That the ordinance defines nudity to include exposure of the female but not male breast does not mean that it classifies based upon a suspect class. . . . The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity.”[11] The Court ultimately held that the ordinance did not violate the defendants’ equal protection rights.[12]

II.  TOPLESS BAN AND NIPPLE FREEDOM JURISPRUDENCE

Unsurprisingly, the New Hampshire Supreme Court’s holding is not novel. Equal protection topless-ban jurisprudence has resulted in circuit splits, exemplified by two recent decisions. In February 2019, the Eighth Circuit upheld summary judgment on an equal protection challenge in favor of the defendant City of Springfield.[13] The Court noted that the city ordinance banning indecent exposure of the “female breast” was “substantially related to its important governmental interests in promoting public decency and proscribing public nudity to protect morals, public order, health, and safety.”[14]

Conversely, and also in February 2019, the Tenth Circuit affirmed an injunction issued by the district court enjoining the City of Fort Collins’ public-nudity ordinance “to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public.”[15] The majority was not impressed by Fort Collins’ “fear of topless women parading in front of elementary schools, or swimming topless in the public school,” and rejected its argument that the ordinance was necessary to “protect[] children.”[16] Instead, the Court found that the Fort Collins’ “professed interest” in child protection was not derived from “any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts… as sex objects” and ultimately held that protecting children from public nudity did not qualify as an “important governmental objective.”[17]

The Tenth Circuit recognized that it is in the minority.[18] Most other courts rejected equal protection arguments made against similar ordinances, noting predominantly that public morality qualified as a governmental interest that allows such sex-based discrimination.[19] Another seemingly absurd argument embraced by courts is the idea of “real differences” between women’s and men’s breasts—a doctrine holding that there is something so substantially different (although courts appear to be unclear about what, exactly, and beyond the mere ability to breastfeed) between breasts that a woman’s breasts are inherently more sexual—which allow sex-based public nudity ordinances to be “substantially related to the government’s legitimate interest.”[20] Interestingly, the Supreme Court has previously stated that “[o]ur obligation is to define the liberty of all, not to mandate our own moral code.”[21]  With this in mind, as well as the circuit splits and the continued evolution of society, the Supreme Court should acknowledge the equal protection concerns inherent in such city ordinances.

III.  THE SUPREME COURT’S REFUSAL TO HEAR EQUAL PROTECTION ARGUMENTS RELATING TO SEX-BASED TOPLESSNESS IS ERRONEOUS.

In January 2020, the Supreme Court once again denied certiorari in Lilley v. New Hampshire.[22] In denying certiorari, and subsequently allowing sex-based topless bans to remain in place, the Supreme Court both essentially reinforces sexualized stereotypes typically attributed to cisgender women’s breasts and inherently marginalizes transgender and gender nonconforming individuals.

To begin, refusal to hear such cases is rooted in gender inequality. Critics of these laws note that they are often based on outdated Victorian and Judeo-Christian values that no longer conform with modern-day society.[23] They represent the patriarchy’s continuing toxic control over women and are rooted in the belief that women were intended to be “treated as a sexual object, subservient to a man’s [body].”[24] Further, in the wake of the #MeToo movement and world leaders who graphically objectify women,[25] it is imperative that courts—including the Supreme Court—adopt the Tenth Circuit’s approach: that doubt should be cast upon the use of “public morality” as a constitutional justification for gender or sex-based classifications.[26] Otherwise, a refusal to cast such doubt only further condones the belief that women are fundamentally sexual objects who otherwise present a threat to the safety of local society.

Further, the Supreme Court also essentially overlooks the impact these ordinances have on marginalized groups who choose not to be defined by gender. One critic of the courts’ sex jurisprudence points out the logical fallacy of sex-based laws, noting that courts have largely all concluded that “the common meaning of male and female, as those terms are used statutorily, . . . refer to immutable traits determined at birth.”[27] Based on the Court’s understanding of sex and gender, therefore, laws regulating female toplessness are thus “inapplicable to postoperative male to female transsexuals,” indicating that a transgender woman who, following gender affirmation surgery and hormone treatment, “has the outward physical appearance of a woman is free to expose her breasts just as a biological male.”[28] While some transgender individuals have used this “loophole” for protest nudity, one activist aptly notes that such laws are “inherently transphobic in [their] antiquated understanding of male and female to begin with” and do not afford “legal spaces for trans people to exist in their own terms.”[29] Thus, it is critical that the Court recognize the inequal, oppressive, and dismissive nature inherent in these ordinances.

CONCLUSION

In conclusion, the Supreme Court erred in its refusal to grant certiorari in Lilley v. New Hampshire. History has demonstrated that the United States has archaic, male-centric views on female nudity, as further evidenced by various local ordinances that ban public female toplessness. While some courts have taken progressive approaches to such outdated laws, most remain rooted in the belief that such laws are instrumental in protecting society.[30] In the interest of fairness for not only cisgender women but also transgender and gender-nonconforming individuals, and to resolve the increasing divide among circuit courts, the Supreme Court should not only grant certiorari but also uphold the equal protection arguments against such ordinances.

[1] See, e.g., Vaidehi Mujumdar, The State Still Controls Women’s Bodies. Especially Brown and Black Ones, The Guardian (Apr. 27, 2015) (discussing the United States’ “long history of policing women’s bodies,” particularly if these women are “poor, women of color, or sexual minorities”).

[2] See David Yi, Everything You Never Thought You Needed to Know About Your Nipples, Very Good Light (Dec. 15, 2016), https://www.verygoodlight.com/2016/12/15/mens-nipples/ [https://perma.cc/A9RG-DG2Z].

[3] A good example is the ordinance in dispute in Free the Nipple—Fort Collins v. City of Fort Collins, 916 F.3d 792, 795 (10th Cir. 2019) (detailing Fort Collins, Colo., Mun. Code § 17-142(b), (d)).

[4] See Parker Marie Molloy, How Transgender Women Make Topless Laws Look Even More Ridiculous and Offensive Than We Already Knew They Were, Bustle (Feb. 6, 2015) https://www.bustle.com/articles/61199-how-transgender-women-make-topless-laws-look-even-more-ridiculous-and-offensive-than-we-already-knew [https://perma.cc/SF3X-CEE8].

[5] See Lilley v. N.H., 2020 U.S. Lexis 152, __ S. Ct. __ (Jan. 13, 2020).

[6] Craig v. Boren, 429 U.S. 190, 197 (1976).

[7] Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724–25 (1982).

[8] See Nicholas Mignanelli, Equal Protection and the Male Gaze: Another Approach to New Hampshire v. Lilley, 22 J. Gender Race & Just. 265, 265–66 (2019) (citing Laconia, N.H., Code § 180-2(A)(3) (2017)).

[9] Id. at 266–67.

[10] Id. at 267 (citing Lilley v. New Hampshire, No. 450-2016-CR-1603, 1623, 1879 (N.H. 4th Cir. Ct. Nov. 20, 2016)).

[11] State v. Lilley, 171 N.H. 766, 775–76 (N.H. 2019).

[12] Id. at 777.

[13] Free the Nipple – Springfield Residents Promoting Equal. v. City of Springfield, 923 F.3d 508 (8th Cir. 2019).

[14] Id. at 512.

[15] Free the Nipple – Fort Collins v. City of Fort Collins, 916 F.3d 792, 794 (10th Cir. 2019).

[16] Id. at 803 (internal citations and quotations omitted).

[17] Id. at 803–04.

[18] Id. at 805.

[19] See, e.g., Tagami v. City of Chicago, 875 F.3d 375, 379 (7th Cir. 2017); United States v. Biocic, 928 F.2d 112, 115-16 (4th Cir. 1991).

[20] The City of Chicago’s Motion to Dismiss in Tagami v. City of Chicago, in which the City argued that “female breasts are considered erogenous in a way that male breasts are not” is a great example of this. See Cynthia Dizikes, Chicago Defends Law Against Going Topless, Chicago Tribune (Jan. 22, 2015), https://www.chicagotribune.com/news/ct-topless-woman-lawsuit-met-20150121-story.html[https://perma.cc/C2N4-AR2T]. Notably, and on the point about breastfeeding, the argument could be made that it is cisgender men’s nipples that are erogenous, as they are incapable of being used for breastfeeding and thus serve only erogenous purposes. See Alaina Demopoulos, The Male Nipple is Free. The Female Nipple, Not So Much. Daily Beast (May 25, 2019), https://www.thedailybeast.com/the-male-nipple-is-free-the-female-nipple-not-so-much [https://perma.cc/B2HS-LCHB]. For further discussion of this doctrine, see Virginia F. Milstead, Forbidding Female Toplessness: Why “Real Difference” Jurisprudence Lacks “Support” and What Can Be Done About It, 36 U. Tol. L. Rev. 273, 274–78 (2005); Luke Boso, NLGLA Michael Greenberg Writing Competition: A (Trans)Gender-Inclusive Equal Protection Analysis of Public Female Toplessness, 18 Law & Sex. 143, 145 n.10 (2009) (conceptualizing “real differences” and noting how it has been applied by courts to justify upholding gender-based toplessness statutes).

[21] Planned Parenthood of Se. Penn. V. Casey, 505 U.S. 833, 850 (1992).

[22] Lilley v. N.H., 2020 U.S. Lexis 152, __ S. Ct. __ (Jan. 13, 2020).

[23] See, e.g., Nassim Alisobhani, Female Toplessness: Gender Equality’s Next Frontier, 8 U.C. Irvine L. Rev. 299, 302 (2018).

[24] Id. at 323.

[25] See Transcript: Donald Trump’s Taped Comments About Women, N.Y. Times (Oct. 8, 2016), https://www.nytimes.com/2016/10/08/us/donald-trump-tape-transcript.html [https://perma.cc/WA5D-2FYH].

[26] See Free the Nipple – Fort Collins v. City of Fort Collins, 916 F.3d 792, 805 (10th Cir. 2019).

[27] Boso, supra note 20, at 146.

[28] Id. (citing Kantaras v. Kantaras, 884 So. 2d. 155, 161 (Fla. Dist. Ct. App. 2004)).

[29] See Mari Brighe, Trans Woman Artist vs. Chicago Topless Ordinance, Advocate (Aug. 25, 2016), https://www.advocate.com/transgender/2016/8/25/trans-woman-artist-vs-chicago-topless-ordinance [https://perma.cc/3KPZ-TARB].

[30] Compare Free the Nipple – Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019), with Free the Nipple – Springfield Residents Promoting Equal. v. City of Springfield, 923 F.3d 508 (8th Cir. 2019).