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City's Restriction on Women Going Topless in Public Withstands Court Challenge

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The ruling in the Missouri case follows at least two other court decisions this year involving the "free the nipple" movement.

A local law in Springfield, Missouri that restricts women from exposing their nipples in public has held up during another round in federal court.

The group Free the Nipple—Springfield Residents Promoting Equality, along with two of its members, challenged the ordinance about three and a half years ago, arguing it is unconstitutional and discriminatory against women, denying them the same rights men have to go topless.

But the 8th U.S. Circuit Court of Appeals on Monday upheld a district court ruling, which concluded the city’s ordinance does not violate the Equal Protection Clause—part of the Constitution that requires governments to treat similarly situated people similarly.

It’s at least the second time this year a federal appeals court has ruled on the issues at the center of the dispute. In February, the 10th U.S. Circuit Court of Appeals sided against Fort Collins, Colorado in a case involving local prohibitions on women exposing their breasts.

New Hampshire’s state Supreme Court also in February upheld the convictions of three women arrested for violating an ordinance in the city of Laconia after going topless at beaches there in 2016.

All three cases have links to the broader “Free the Nipple” movement, which advocates for women to gain freedoms like those men enjoy when it comes to having an option to go shirtless in public without breaking laws or feeling stigmatized.

The Springfield, Missouri case dates back to 2015.

In August that year, according to Monday’s ruling, Jessica Lawson and Amber Hutchison organized a protest to raise awareness about the city’s indecent exposure ordinance. Protesters appeared topless except for black tape covering their nipples.

Springfield in September 2015 then enacted a more restrictive indecent exposure ordinance. Lawson and Hutchison went on to file a lawsuit against the measure in federal district court.

As legal proceedings unfolded, the city backtracked and in March 2016 adopted an indecent exposure ordinance in line with the one it had on the books previously.

The rulings by the district court and appeals court in the Missouri case concern the March 2016 ordinance. It bars public acts of “indecent exposure,” and says this includes revealing “the female breast with less than a fully opaque covering of any part of the areola and nipple.”

There are exceptions for breast-feeding and for performances at “adult entertainment” venues.

Lawyers with the American Civil Liberties Union of Missouri Foundation in a brief filed for the plaintiffs argued that the city's law “discriminates based on gender” and “criminalizes women and girls for something men and boys can do freely: show their nipples in public.”

They added that the ordinance perpetuates female stereotypes, saying that the Equal Protection Clause should reject the notion that “women have a special duty of modesty that men do not share and that women are merely objects of sexual desire whose bodies are uniquely dangerous to the public.”

Part of the plaintiffs’ argument was that there are no significant differences between male and female nipples. They also said that a city law banning everyone—male and female, as opposed to just women—from going bare-chested would pass constitutional muster.

Springfield countered that the ordinance served “important governmental interests of promoting decency and protecting morals by prohibiting public nudity as a matter of law.”

U.S. District Court Judge Beth Phillips in October 2017 ruled in favor of the city, granting its motion for summary judgement in the case and blocking it from proceeding to a full trial.

“There is no denying that men’s and women’s breasts are different,” the judge wrote. “Nor is there any dispute that our society has long considered them to be different, particularly as related to matters of decency.”

A three-judge panel for the 8th Circuit—which covers Arkansas, Missouri, Iowa, Minnesota, Nebraska, South Dakota and North Dakota—concluded that the district court had ruled properly.

The appeals court said “the majority of courts considering equal protection challenges have upheld similar laws prohibiting women, but not men, from exposing their breasts.”

The court pointed to its own 2003 ruling in Ways v. City of Lincoln, where it upheld an almost identical local law challenged by the owner of a Nebraska “gentlemen’s club.”

“This court must follow the holding in Ways,” Monday’s ruling said.

A three judge panel for the 10th U.S. Circuit Court of Appeals struck a different tone earlier this year in the Fort Collins case.

In a 2-1 ruling the judges determined a district court did not err in issuing a preliminary injunction that blocked the city—at least temporarily—from enforcing an ordinance, similar to the one in Springfield, that Free the Nipple advocates in Colorado challenged on equal protection grounds.

The court’s majority opinion references concerns Fort Collins raised about topless women “parading in front of elementary schools” or swimming at pools, exposing children to nudity.

But the judges noted that other cities, including nearby Denver and Boulder, allow women to go topless and that Fort Collins had presented no evidence of harmful fallout in those places.

“We’re left, as the district court was,” Judge Gregory Phillips wrote for the majority, “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.”

The 10th Circuit ruling sent the Fort Collins case back to the lower court for further proceedings.

But the two-judge majority acknowledged that, compared to other federal court rulings, theirs was somewhat of an outlier. “Most other courts,” Phillips wrote, “have rejected equal-protection challenges to female-only toplessness bans.”

Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.

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