A federal appeals court Wednesday upheld the constitutionality of Ocean City’s prohibition on women going topless while permitting men to go bare-chested in the Eastern Shore beach town, saying the gender-based ban is substantially related to the important governmental interest of protecting “public sensibilities.”
In its published decision, the 4th U.S. Circuit Court of Appeals declined to overturn its 30-year-old ruling in United States v. Biocic, which upheld the federal government’s prohibition on women going topless in national parks while permitting men to go shirtless.
The three-judge appellate panel’s decision marked a defeat for five women who argued Ocean City’s dress ordinance violates the Constitution’s guarantee of equal protection under the law. The women’s attorney, Devon M. Jacob, said Wednesday that he and his clients will seek review by the full 15-member 4th Circuit.
The women had argued in court papers that the ordinance is based on Biocic’s outdated perception of the “public’s moral sensibilities” and “codifies long-standing discriminatory and sexist ideology in which women are viewed as inherently sexual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.”
But the 4th Circuit said Biocic remains precedential and that Ocean City leaders had sufficiently shown that public opposition to women going topless in the town remains strong.
Town leaders said they 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, the 4th Circuit said. By contrast, court testimony regarding the public’s evolving tolerance of exposed female breasts “offered no evidence that the public sensibilities of Ocean City residents or vacationers have evolved on that discrete issue,” the 4th Circuit added.
“The burden of proving the ordinance’s constitutionality rests with Ocean City and it offered the only admissible evidence on the public sensibilities of Ocean City residents and vacationers,” Judge A. Marvin Quattlebaum Jr. wrote for the appellate panel.
“Accordingly, we find that Ocean City has met its burden of providing an exceedingly persuasive justification for treating the public showing of bare breasts by females and males differently in the ordinance,” added Quattlebaum, who was joined by Judge Barbara Milano Keenan. “We further hold that the prohibition on public female toplessness is substantially related to the important governmental interest in protecting the public sensibilities of Ocean City.”
Chief Judge Roger L. Gregory concurred in the court’s judgment for Ocean City, stating in a separate opinion that the appellate panel was bound by the precedent in Biocic until it is either overturned by the full 4th Circuit or the U.S. Supreme Court.
Gregory advised those higher courts to be less deferential to public sensibilities on gender matters, saying a discriminatory law cannot be upheld if it “perpetuates the legal, social, or economic inferiority of women” or rests upon “archaic and overbroad generalizations about gender.”
“Viewed in this light, laws that discriminate between male and female toplessness embody problematic stereotypes through the control imposed upon the bodies of women and not men,” Gregory wrote. “By treating women’s breasts (but not those of men) as forbidden in public sight, these laws may reduce women’s bodies to objects of public gaze, reproduce the Victorian-era belief that women should be seen but not heard, and reinforce stereotypes that sexually objectify women rather than treating them as people in their own right.”
Gregory asked readers to “suppose the ordinance defined nudity to include public exposure of a woman’s hair, neck, shoulders or ankles.”
“Would that law not run afoul of the Equal Protection Clause?” he added. “While the ordinance here imposed a much narrower restriction on women, this is only a difference in degree, and not in kind.”
Gregory concluded by stating that, if asked, the full 4th Circuit “should reconsider Biocic and apply greater scrutiny to fulfill the full promise of equal protection.”
Jacob, the women’s attorney, stated via email that “while my clients and I are disappointed by the 4th Circuit’s decision, we are encouraged by Chief Judge Gregory’s statement” regarding the full court’s potential reconsideration of Biocic.
“My clients and I intend to provide the court with an opportunity to do so, and with a renewed chance to elevate women to equal status with men in Ocean City,” added Jacob, a solo practitioner in Mechanicsburg, Pennsylvania.
Ocean City representatives did not immediately respond to a comment request Wednesday. The town was represented in court by Bruce F. Bright, of Ayres, Jenkins, Gordy & Almand PA in Ocean City.
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 in U.S. District Court in Baltimore after city officials passed the emergency ordinance prohibiting the nude display of a person’s specified anatomical areas. Those areas included the male and female genital regions and the female breast.
Violations of the ordinance carry a fine of up to $1,000.
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.
Chief U.S. District Judge James K. Bredar upheld the ordinance in April 2020, saying he was bound by the Biocic decision.
The women then sought review by the 4th Circuit, which rendered its decision in Chelsea C. Eline et al. v Town of Ocean City, Md., et al., No. 20-1530.