Free the Nipple: Are Gender-Specific Indecency Laws Constitutional?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 11, 2016

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Woman Opening BraA new lawsuit filed in U.S. District Court in Denver alleges that a Fort Collins ordinance that bars women from exposing their breasts in public is unconstitutional. The suit alleges that the regulation is based on outdated puritanical values and discrimination and violates the free speech clause of the First Amendment and the equal protection clause of the Fourteenth Amendment.

The lawsuit was filed by Free the Nipple, an association of Colorado residents who advocate for gender equality, the group’s founder Brittiany Hoagland, and Samantha Six, a group member. Hoagland stated, “Hey, my body is not indecent if his is not indecent.”

Carrie Daggett, Fort Collins’ city attorney, acknowledged that they have received the complaint and are in the process of reviewing it. 

City Council Updated Law, But Not Far Enough

Hoagland brought the ordinance to the attention of the Fort Collins City Council last year. She wanted the Council to update the law to allow both men and women to freely bare their breasts. The Council rejected her idea, but did update the law to allow breastfeeding, to clarify how it applies to children under 10 years of age, and defined the breast as beginning at the top of the nipple.

The ordinance at issue, Section 17-142(b) of the Fort Collins Ordinances, states that  

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; or
  2. On private property if the person is in a place that can be viewed from the ground level by another who is located on public property and who does not take extraordinary steps, such as climbing a ladder or peering over a screening fence, in order to achieve a point of vantage.

Plaintiffs believe that this language is sexist and therefore unconstitutional. Each violation of this ordinance can be punished by a fine of up to $2,650 and imprisonment of up to 180 days.

Right to Appear Topless Recognized in Other States

The attorney for the plaintiffs, Denver civil rights lawyer David Lane, has stated that he believed that this is a strong case. “My clients believe that any statute that begins ‘women are prohibited from’ is per se unconstitutional,” he said. “I would tend to agree with that.” 

The suit claims that thirty states, as well as Denver, Boulder, and New York, recognize a woman’s right to appear topless in public. Many other Colorado cities have removed gender-specific language from their indecency codes. 

The lawsuit seeks an injunction, preventing enforcement of the law and a declaration that the law is unconstitutional. 

Gender-specific indecency laws have received increased attention over the past few years. Free The Nipple is a film, website, and equality movement dedicated to its mission to empower women around the world by standing up to female oppression and censorship. 

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