The XX Factor

Federal Judge Blocks Topless Ban as a Likely Violation of Equal Protection

Fighting for gender equality is an American tradition.

From the Records of the National Woman’s Party, Manuscript Division, Library of Congress, Washington, D.C.

U.S. District Judge R. Brooke Jackson blocked a topless ban in Fort Collins, Colorado on Wednesday, holding that, by permitting men but not women to display their breasts in public, the ordinance likely violated the Equal Protection Clause of the 14th Amendment. The first federal ruling of its kind, Wednesday’s decision is a sharply reasoned and incisive excoriation of the archaic, sexist stereotypes that undergird such laws. But it is also, at bottom, a fairly conventional application of settled constitutional principles—and even those critics of the ruling who dislike Jackson’s conclusion will struggle to identify any specific logical infirmities in his opinion.

As advocacy group Free the Nipple correctly stated in its lawsuit against the ordinance, Fort Collins’ focus on female breasts explicitly discriminates on the basis of sex. Under the measure, women who show their nipples in public can be arrested, fined, and imprisoned for 180 days—while men are free to flaunt their nipples wherever they wish. The Equal Protection Clause generally forbids sex discrimination of this sort unless it is bolstered by an “exceedingly persuasive justification.” So the question for Jackson was whether Fort Collins met this high bar. The city provided two justifications that it purported to be “exceedingly persuasive”: First, that the ban is necessary to maintain “public order” and “protect children”; and second, that female breasts are sufficiently different from male breasts to merit disparate treatment of each.

Jackson rejected both arguments. He first wrote that “the evidence Fort Collins has presented” regarding public safety “amounts to little more than speculation.” For example, the city called the assistant police chief to testify “that topless females in public likely might cause distracted driving and traffic issues that disrupt public order.” As Jackson explained:

There are many things that could potentially distract drivers and disrupt traffic, but the constitutional issue is whether there is such a threat to public order that it rises to the level of an important government interest. Frankly, without any significant evidence on this point, I’m skeptical that it does.

Instead, Jackson noted, “it appears that underlying Fort Collins’s belief that topless females are uniquely disruptive of public order” is a “negative stereotype about female breasts”—that “society considers female breasts primarily as objects of sexual desire whereas male breasts are not.”

Jackson acknowledged that many other cities have similar ordinances, but insisted that their ubiquity does not render these laws constitutional.

“Unfortunately, our history is littered with many forms of discrimination, including discrimination against women,” Jackson wrote. “As the barriers have come down, one by one, some people were made uncomfortable. In our system, however, the Constitution prevails over popular sentiment.”

Jackson then turned to the city’s second argument—that there are “inherent physical differences” between male and female breasts. “Of course there are,” Jackson wrote. “The most obvious difference is that female breasts have the potential to nourish children, whereas male breasts do not.” But, he held, this physical difference did not motivate Fort Collins’ ordinance. “Rather,” he wrote, “based on the present record”:

I find that the ordinance discriminates against women based on the generalized notion that, regardless of a woman’s intent, the exposure of her breasts in public (or even in her private home if viewable by the public) is necessarily a sexualized act. Thus, it perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.

“At bottom,” Jackson continued, “this ordinance is based upon ipse dixit—the female breast is a sex object because we say so. That is, the naked female breast is seen as disorderly or dangerous because society, from Renaissance paintings to Victoria’s Secret commercials, has conflated female breasts with genitalia and stereotyped them as such. The irony is that by forcing women to cover up their bodies, society has made naked women’s breasts something to see.”

Jackson then took direct aim at the claim that female-exclusive topless bans are constitutional because they have a long tradition in our society, referencing several Supreme Court cases that have rebuffed similar arguments about different restrictions on women’s rights:

I do not accept the notion, as some of those courts have, that we should continue a stereotypical distinction “rightly or wrongly,” or that something passes constitutional muster because it has historically been a part of “our culture.” We would not say that, rightly or wrongly, we should continue to recognize a fundamental difference between the ability of males and females to serve on juries. Or between male and female estate administrators. Or between military cadets. Or between the ability of males and females to practice law. Nor should we here.

“After much thought,” Jackson wrote, “I have concluded that going out on this lonely limb is the right thing to do.” The Fort Collins ordinance, he wrote, is “based on an impermissible gender stereotype that results in a form of gender-based discrimination” and thus likely violates the Equal Protection Clause. Jackson closed his opinion by issuing a preliminary injunction that prohibits Fort Collins from enforcing its topless ordinance “to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public.”

Last year, Jackson denied Fort Collins’ attempt to throw out the lawsuit in its early stages, presaging his ruling on Wednesday. His full-throated defense of true gender equality, and repudiation of archaic stereotypes that limit women’s liberty, is a splendid step forward for the judiciary in this area. Free the Nipple may have a silly name, and topless bans may not seem like a particularly pressing problem in Trump’s America. But invidious sex discrimination is toxic in all its forms. And faced with a sexist law like Fort Collins’, courts should always err on the side of equality.