A federal judge declined to prohibit Ocean City from enforcing its ban on female toplessness Thursday, finding the plaintiffs challenging the ordinance failed to prove public sensibilities of the town have evolved to accept it.
The plaintiffs sought a preliminary injunction in their lawsuit challenging the constitutionality of the ordinance, which was enacted in the summer of 2017 following a public response that Mayor Rick Meehan called the largest he’d ever seen on a single issue.
U.S. District Judge James K. Bredar declined to order relief because the plaintiffs did not show they were likely to succeed on the merits.
“My clients are not discouraged,” Devon M. Jacob, counsel for the plaintiffs, said in a statement. “A preliminary injunction is an extraordinary remedy that is rarely granted. The fact that the Court denied the request on a very limited record is not at all surprising.”
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. At a hearing Dec. 7, Bredar said the question before him is whether those moral sensibilities remain in 2018 in Ocean City.
Bredar said the plaintiffs “failed to counter the quite convincing evidence presented by Ocean City” that the public does not agree with their stance.
Meehan said he received calls and emails from people concerned the “character of Ocean City would change” if it became a “topless beach.”
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.
The plaintiffs’ sole witness was Debby Herbenick, a professor at Indiana University and expert on public health and sexuality, who 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.
Bredar said he did not find her opinion persuasive and said it was not relevant because she was testifying not to what Ocean City citizens’ views are but what they should be.
“Plaintiffs did not muster any evidence to show that Ocean City’s citizens shared their view that women should be able to be bare-chested in public places as men are,” he wrote.
Jacob, a Pennsylvania solo practitioner, said the plaintiffs will be able to address the court’s concerns once discovery is completed and the judge will be able to issue a final decision in their favor.
The attorney representing the town, Bruce F. Bright, of Ayres, Jenkins, Gordy & Almand P.A. in Ocean City, was unavailable for comment Thursday.
The case is Chelsea C. Eline et al. v. Town of Ocean City, 1:18-cv-00145.