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Judge to rule on injunction for Ocean City ban on female toplessness

Flags are flown at half-staff on Friday at The Edward A. Garmatz United States Courthouse in Baltimore. (The Daily Record / Heather Cobun)

Flags are flown at half-staff on Friday at The Edward A. Garmatz United States Courthouse in Baltimore. (The Daily Record / Heather Cobun)

A federal judge was skeptical of a legal challenge to Ocean City’s ordinance banning female toplessness on its beaches at a hearing Friday as town officials testified to the numerous calls, emails and conversations they had with concerned residents and visitors.

Several women filed suit against the town in U.S. District Court in Baltimore in January claiming the ordinance, which was passed after the town publicized that it was looking into the issue, unconstitutionally discriminates based on gender.

Chief District Judge James K. Bredar said he will issue a written opinion on the plaintiffs’ request for an injunction later, but near the end of Friday’s hearing questioned why he should set aside an ordinance passed unanimously by the town’s council.

A 1991 decision by the 4th U.S. Circuit Court of Appeals on a similar issue held that a distinction based on anatomy was gender-based but found it was permissible because it served the important government interest of protecting “the moral sensibilities” of society. Bredar said the question before him is whether those moral sensibilities remain in 2018 in Ocean City.

Mayor Rick Meehan testified that he does all he can to interact with the year-round population in the town, approximately 7,800 residents, and the hundreds of thousands of visitors that come each year. He said Ocean City’s strategic plans revolve around branding the town as a family vacation destination.

When a woman, who would later be one of the plaintiffs in the lawsuit, asked the city for clarification about the legality of topless sunbathing in the spring of 2017, the issue came before the council and received media coverage. Meehan said the town consulted the local prosecutor and requested advice from the Maryland Office of the Attorney General, but in the meantime, officials were receiving messages of concern.

Meehan said the issue of female toplessness drew the most public response he’s ever seen in his time in public office. People were concerned the “character of Ocean City would change” if it became a “topless beach.”

The council held an emergency session in June 2017 to pass the ordinance banning such conduct.

“It had reached the point where we thought it was important that we take a stand,” he said. “I did not run into anybody or talk to anybody who was opposed to the direction we were taking.”

Council member Mary Knight said constituents and visitors were very concerned and generally opposed to allowing women to be topless on the beaches. Melanie Pursel, president and CEO of the Ocean City Chamber of Commerce said her office received more than 100 calls and emails from concerned visitors threatening to cancel reservations.

“It was nothing short of public outcry,” she said.

Devon M. Jacob, a Pennsylvania solo practitioner representing the plaintiffs, pointed to the relatively small number of complaints the town could point to compared to the estimated 8 million people that visit Ocean City annually.

“I don’t believe that a tiny fraction that speak out… is really necessarily a representation of the public sentiment,” he told Bredar.

Jacob’s only witness was Debby Herbenick, a professor at Indiana University and expert on public health and sexuality, testified that the public doesn’t need “protection” from the female breast and there was no reason to think seeing a topless woman on the beach would be “unpalatable” as claimed by the ordinance.

“Males and females have very complex and varied feelings about their breasts and they’re not just one thing,” she said. “Breasts are complex and our feelings about them are complex and that’s OK.”

But Bredar pointed out Herbenick’s lack of knowledge about the sensibilities of Ocean City’s residents and visitors compared to the credible testimony of town officials who were elected to represent those sensibilities.

“I do still indulge the basic notion that politicians, when elected are representing, by and large, the prevailing viewpoint of the public that elected them,” he said.

Bredar did not announce a time frame for his ruling.

The case is Chelsea C. Eline et al. v. Town of Ocean City, 1:18-cv-00145.

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