Editorial Advisory Board: Lions and tigers and bares – oh my!

When the Maryland State Bar Association Legal Summit & Annual Meeting takes place in Ocean City this week, the attendees may be greeted by a new sight, or sights as the case may be: bare-chested women. At least if Chelsea Eline gets her way.

Eline is an advocate for females being allowed to be bare-chested in public and often goes topless in public areas in Maryland, including Ocean City. Last June, the Ocean City Council passed an emergency ordinance prohibiting women from going topless in certain public areas, including the beach and Boardwalk, after Eline requested clarification of the existing state laws prohibiting female toplessness in public areas. Eline’s request was cited by Mayor Richard W. Meehan as a reason for passing the ordinance, and the council made legislative findings that neither free speech nor equal protection rights were violated by the law.

In response Eline filed suit in January in U.S. District Court; a discovery deadline was recently set for December.

Ocean City, its residents and businesses, depend on a vibrant tourist industry, a tourist industry that by all accounts is based on families. As important an issue as this is to Eline, and as attractive an idea as that may be to some, most would say it is not (at least as of today) compatible with the character of Ocean City.  The city fears that allowing women to be topless on its beaches and in its public areas will significantly and adversely impact tourism and therefore the economic health of the City and its – citizens.

Eline cites her right to be bare-chested in public areas, which begs the question: Just because one has a right, should that right be exercised? We have seen that issue play out publicly regarding First Amendment rights. NFL players have a constitutional right to protest the national anthem publicly without penalty from the government. However, doing so in their workplace can be regulated by their employer.  Last year, NFL fans expressed their displeasure with the practice, as is their right, significantly impacting NFL revenue. This year, in response, the NFL announced new rules governing anthem protests.

Roseanne Barr is the most recent public figure who learned the hard way that just because you have a right to say any stupid thing you wish, stupidity has consequences. Unfortunately for Ocean City, the consequences to devotees of the practice espoused by Eline may only be a bad sunburn; Ocean City, however, could, like the NFL, suffer significant economic damage.

Eline has based her action on the Equal Protection clause of the 14th Amendment, which may provide a formidable hurdle for Ocean City to overcome. In 2017 a Colorado judge enjoined enforcement of a similar Fort Collins law, citing discrimination and the 14th Amendment’s equal protection clause as a basis for the decision. That matter was recently argued in the 10th Circuit, with reports that the three-judge panel seemed very skeptical regarding constitutionality of the law.

Changing norms

Twenty years ago, Ocean City would have been thought to have the advantage, but not today. We used to recognize there is a fundamental difference between boys and girls. In recent years, we have decided gender is not a basis for choice in public restrooms, and more recently some institutions have decided to create new pronouns for gender beyond “he” and “she.” California, Oregon and the District of Columbia offer gender-neutral driver’s licenses.

Recently, at a major educational institution, a male student requested the right to play on the school’s women’s soccer team. The school does not offer men’s soccer, so the male player may have a reasonable claim under Title IX. The school, which has an excellent women’s soccer program, would be barred from being its conference champion and participating in postseason play if it allows a man to play on the women’s team, however.

Although the instances cited above suggest a desire to eliminate recognition of the differences between men and women, we have officially recognized there is a difference between the sexes in the “potty parity” laws, which require more restroom facilities for women than for men in large public spaces such as sports arenas.

Standards of decency also have changed. George Carlin’s “Seven Words You Can Never Say On Television” are regularly used now on television with impunity, one just recently by Samantha Bee.  In the 1800s, male bathers did not go topless in public and female bathers were nearly fully dressed.  Today, very little is left to the imagination, and some female bathing suits more resemble an eyepatch than swimwear.

Invidious gender discrimination in which either sex is denied rights or privileges because of gender is wrong. Women should have all the same privileges as men, and vice versa. But in our effort to eliminate wrongful discrimination, have we moved to a place where even a recognition of the differences between the sexes is deemed unlawful?

Perhaps all of the concern over Eline’s action is a mere tempest in a teapot. Perhaps no one will even care. Most are familiar with the paraphrase from the Bible, “you reap what you sow.” It sure seems to be the case here. In this instance, the value of the crop will for sure be in the eyes of the beholder.

Editorial Advisory Board members James B. Astrachan, James K. Archibald, Martha Ertman, Susan Francis, David Jaros and H. Mark Stichel did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

John Bainbridge Jr.

Wesley D. Blakeslee

Martha Ertman

Arthur F. Fergenson

Susan Francis

Marcella A. Holland

David Jaros

Ericka King

Stephen Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

Find out more about the members of the Editorial Advisory Board.