Public female toplessness has recently taken social media by storm following a 10th Circuit Court of Appeals ruling that initially appeared to legalize it in the six states under the Court’s jurisdiction. Now the waters have been muddied regarding where exactly the laws have changed.
In 2015 the City of Fort Collins, Colorado enacted an ordinance restricting public female toplessness, leading Brittiany Hoagland and Samantha Six to sue the City on behalf of the “Free the Nipple” movement. A district court sided with the plaintiffs in 2017, and the City appealed the decision. On February 15th, 2019, the 10th Circuit Court of Appeals upheld the district court’s decision in a 2-1 vote.
In Free the Nipple v. City of Fort Collins, Circuit Judge Gregory A. Phillips states “we recognize that ours is a minority viewpoint. Most other courts, including a recent (split) Seventh Circuit panel, have rejected equal-protection challenges to female-only toplessness bans…None of these decisions binds us, though; nor does their sheer volume sway our analysis.” Judge Mary Beck Briscoe sided with Phillips.
Circuit Judge Harris L. Hartz wrote a dissenting opinion, saying the Fort Collins ordinance “does not discriminate against women on the basis of any overbroad generalization about their perceived ‘talents, capacities, or preferences.’ To the extent it distinguishes between the sexes, it is based on inherent biological morphological differences between them.”
Though the court’s opinion was rendered in February, it didn’t go viral till September when Fort Collins decided not to appeal the decision to the Supreme Court. The City had already spent more than $300,000 defending the ordinance, and did not want to spend additional public funds on a case they weren’t sure they would win.
“Free the Nipple” advocates have claimed that the ruling, and Fort Collins’s subsequent decision not to appeal it, in effect legalized public female toplessness in Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, as well as portions of Yellowstone National Park extending into Montana and Idaho.
In reality, it’s not that cut and dry. Individual ordinances will still need to be challenged at the state and municipal levels, and local governments have the ability to continue enforcing those ordinances until they are ordered by the courts to stop.
The Oklahoma City Police Department issued a statement saying that they “will continue to enforce the law as outlined by City Ordinance and State Law as this preliminary injunction issued by the 10th Circuit Court is in reference to an appeal specific to the City of Ft. Collins in Colorado. Therefore, someone in OKC who is in violation of the law could be city and/or jailed as this is a misdemeanor crime.”
On the other hand, the Tulsa Police Department initially stated that the court decision did apply, and they would not be arresting or ticketing women who went topless in public areas. The Tulsa County Sheriffs Department also stated they would abide by the court’s ruling, even allowing toplessness at the Tulsa State Fair, since it is a public event.
On Monday, Oklahoma Attorney General Mike Hunter released a statement saying that “the ruling does not automatically invalidate local and state laws in Oklahoma.”
"The Tenth Circuit’s preliminary decision in the Fort Collins case – a case that has now ended without a full adjudication – does not change local and state laws in Oklahoma on the subject,” Attorney General Hunter said. “The majority of courts around the country that have examined this issue have upheld traditional public decency and public nudity laws. These courts have recognized that states and political subdivisions have a legitimate interest in prohibiting public nudity as traditionally defined."
Hunter cited a May ruling by the 8th Circuit Court of Appeals that upheld a similar ordinance in Springfield, Missouri, and a 2017 ruling by the 7th Circuit Court of Appeals that upheld a similar ordinance in Chicago, Illinois.
“The 10th Circuit’s ruling made preliminary conclusions about the Fort Collins ordinance, but did not decide the law’s ultimate constitutionality. Because the Fort Collins ordinance was repealed, the 10th Circuit’s ruling likely cannot be appealed to the U.S. Supreme Court. In conclusion, the 10th Circuit’s ruling is not binding on Oklahoma state courts.”
Following Hunter’s statement, the Tulsa Police Department changed course, but not before dozens of women skated topless down the Riverside trail system Sunday evening. The department said, following AG Hunter’s guidance, they will continue to ticket or arrest women who go topless in public.
The Sand Springs Police Department, however, will continue to abide by the Appellate Court’s decision, according to Police Chief Mike Carter. Carter provided Sandite Pride News with the following statement Monday evening at 7:30 p.m.
“We respect the authority and jurisdiction of the 10th Circuit which covers the State of Oklahoma. If we encounter situations where the conduct crosses the line to be in a lewd and lascivious manner, we will still enforce the state statues or city ordinance. If the conduct is not done with the intent of being obscene or sexual in nature, we will not as the Court has ruled that women have an equal protection under the law. We hope that this is a passing issue as we would like to concentrate our time and effort on crimes that are worthy of our attention.”
For now, women seeking to go topless in public should reach out to their local police department to find out if local or state ordinances will be enforced. Additionally, displaying the breasts in a non-sexual manner may be protected in some areas, especially in regards to breastfeeding, but sexual activities will likely violate public lewdness laws in most jurisdictions.
There is currently a lawsuit pending before the United States Supreme Court, challenging a ban on topless women in New Hampshire. The Court has yet to announce if it will hear the case.