Women appeal Ocean City’s topless ban

In this June 9, 2012, photo, people crowd the beach in Ocean City. (Amanda Rippen White/The News Journal via AP, File)

Ocean City’s prohibition on women going topless violates the Constitution’s guarantee of equal treatment under the law because men are permitted to go bare-chested in the Eastern Shore beach town, a group of women told a federal appeals court this week.

The gender-specific ban is based on an outdated perception of the “public’s moral sensibilities” and “codifies long-standing discriminatory and sexist ideology in which women are viewed as inherently sexual objects without the agency to decide when they are sexual and when they are not,” the women stated in papers filed through counsel Tuesday with the 4^th U.S. Circuit Court of Appeals.

The five women are appealing Chief U.S. District Judge James K. Bredar’s April decision upholding Ocean City’s ordinance, which carries a fine of up to $1,000.

Bredar, who sits in the Baltimore federal courthouse, quoted from a 1991 decision by the 4^th Circuit that requiring women to cover up passes constitutional muster because it is “substantially related” to the government’s “important interest” in “protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones.”

Bredar added that, though people may have become more tolerant of women’s exposed breasts in the past three decades, the 4^th Circuit’s published decision in United States v. Biocic remains the law in Maryland until the holding is overturned by the 4^th Circuit or the U.S. Supreme Court. In Biocic, the 4^th Circuit upheld the federal government’s prohibition on women going topless in national parks while permitting men to go shirtless.

The women’s attorney told the 4^th Circuit that the time is right for it to overturn its “sexist” precedent. Devon M. Jacob said the deeply rooted #MeToo movement’s fight against sexism and sexual predation of women did not exist in 1991.

“Our nation has matured during the 30 years that have passed since this court decided Biocic,” wrote Jacob, a solo practitioner in Mechanicsburg, Pennsylvania.

“Society has come to accept that women are people; not sexual objects subject to the control of a few sexist individuals,” Jacob added. “It is time for this court to ensure that the Equal Protection Clause protects women in the same way it protects men.”

Ocean City, in defense of its ban in district court, stated that public opposition to women going topless in the town remains strong. Town leaders received many in-person visits, telephone calls and emails from residents and seasonal visitors voicing strong concern with the prospect of a change in the dress code, wrote Ocean City’s lawyer, Bruce F. Bright, of Ayres, Jenkins, Gordy & Almand PA in Ocean City.

The town’s response to the women’s 4^th Circuit filing is due at the appellate court Aug. 13.

The five women sued Ocean City in 2018, arguing they had the right to appear topless in public like men. The women are Chelsea C. Eline, Megan A. Bryant, Rose R. MacGregor, Christine E. Coleman and Angela A. Urban.

The lawsuit was filed after city officials passed an emergency ordinance in 2017 prohibiting the nude display of a person’s specified anatomical areas. Those areas included the male and female genital regions and the female breast.

Local officials passed the ordinance after one of the women sent letters to local authorities stating her intention to go topless, touching off a community debate.

The case is Chelsea C. Eline et al. v Town of Ocean City, Md., et al., No. 20-1530.