Ocean City defends topless ban in 4th Circuit filing

Ocean City’s prohibition on women going topless “protects and advances the prevailing sensibilities” of its residents and visitors, the Eastern Shore beach town told a U.S. appeals court Thursday as it considers whether the ban violates the Constitution’s guarantee of equal treatment under the law because men are permitted to go-bare chested.

“Protecting public sensibilities” is an “important, legitimate, and well-recognized governmental interest” to which the gender-based prohibition is “substantially related,” Ocean City wrote in papers urging the 4^th U.S. Circuit Court of Appeals to uphold the dress code.

The town’s filing came in response to a group of women’s 4^th Circuit challenge to the ban as unconstitutional sex discrimination.

The prohibition is based on an outdated perception of public sensibilities that “codifies long-standing discriminatory and sexist ideology in which women are viewed as inherently sexual objects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’s attorney, Devon M. Jacob of Mechanicsburg, Pa., wrote in their filing last month.

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.”

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, Bredar said. 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, a ruling the Maryland attorney general’s office has said remains the law.

Ocean City, in its 4^th Circuit filing, urged the appellate court to preserve the Biocic precedent and the considered view of the town’s leaders with regard to community standards.

“Plaintiffs have taken an activist stance in this case and are advocating for a dramatic and fundamental change to existing law and jurisprudence (which would deviate from this court’s precedent in Biocic and the officially stated view of the Maryland attorney general),” wrote Ocean City’s attorney, Bruce F. Bright.

“Without supporting proof and contrary to Biocic, plaintiffs seek to disrupt the character and moral balance of a historically family-oriented tourist destination, visited and enjoyed by so many people whose expectations and sensibilities (as the record plainly reflects) do not contemplate and will not tolerate public exposure of the female breast in such a densely populated and family-oriented setting as Ocean City and its beaches,” added Bright, of Ayres, Jenkins, Gordy & Almand PA in Ocean City. “Protecting public sensibilities, plainly, is and has long been recognized by the Supreme Court and lower courts as an important governmental interest to be advanced legislatively, and plaintiffs have not presented any legal basis (there is none) for this well-settled rule of constitutional law to be ignored or deviated from here.”

Last year, the Denver-based 10^th U.S. Circuit Court of Appeals blocked enforcement of a similar ban in Fort Collins, Colorado, saying it was based on a stereotyped “sexualization” of the female breast and that “laws grounded in stereotypes about the way women are serve no important governmental interest.” The Richmond, Va.-based 4^th Circuit, however, is not bound by decisions of other circuit courts, including the 10^th, which acknowledged that its decision is the minority view, Bright wrote.

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.