Federal appeals court upholds injunction against city’s topless ban for women
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Federal appeals court upholds injunction against city’s topless ban for women

The US Court of Appeals for the Tenth Circuit on Friday upheld a district’s court decision to block the city of Fort Collins, Colorado, from enforcing a ban on public topless nudity for women.

Fort Collins city council passed an ordinance in 2015 stating:

No female who is ten (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: (1) In a public right-of-way, in a natural area, recreation area or trail, or recreation center, in a public building, in a public square, or while located in any other public place.

Plaintiffs from the “Free the Nipple” organization challenged the city’s ban on grounds of free speech and Equal Protection clause violations. The district court found that the “topless protests” under the guise of free speech did not constitute protected speech under the First Amendment, but still ruled on the Equal Protection claims.

The appeals court reasoned that the female-only topless ban was a gender based classification allowing men to appear topless in public while the ordinance would criminalize women who did the same. The plaintiffs alleged that the city’s reliance on the physical differences between male and female bodies were not drawn from legal distinctions, but from the negative stereotypes that sexualize women’s bodies.

The city also alleged that the ordinance was meant to protect children and traffic safety, but ordinances allowing for topless protests in neighboring cities  failed to show any substantive evidence that exposure disrupts public interests. Again the courts conclude that “enacting the public-nudity ordinance had less to do with the City’s professed objectives and more to do with the sex-object stereotype that the district court described.”

The appeals court reached the opposite conclusion of the New Hampshire Supreme Court, which ruled last week that a topless ban did not violate the Equal Protection Clause.