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Women seek full 4th Circuit review of Ocean City’s topless ban

Saying times have changed, five women are urging a federal appeals court to overturn its 30-year precedent and strike down as unconstitutional Ocean City’s prohibition on women going topless while permitting men to go bare-chested in the Eastern Shore beach town.

The 4th U.S. Circuit Court of Appeals relied on now-outdated moral sensibilities in 1991 when it upheld the federal government’s prohibition on women going topless in national parks while permitting men to go shirtless, the women stated through counsel in asking the full 4th Circuit last week to hear their case.

The 4th Circuit back then, in United States v. Biocic, said the gender-based distinction did not violate the Constitution’s guarantee of equal protection under the law because society validly regarded the public display of men’s and women’s torsos differently — a view the women contend was and continues to be rooted in sexism.

“Thirty years have passed since this court decided in Biocic that ‘protecting the moral sensibilities’ is an important governmental interest,” wrote Devon M. Jacob, the women’s attorney, in the request for full court review. “It is now clear that Biocic’s ‘protecting the moral sensibilities’ reasoning permits sexist ideology to be cloaked in legitimacy in the same way that ‘nationalism’ legitimizes racism.”

Ocean City’s ordinance “does not further an important governmental interest, but rather codifies longstanding 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,” added Jacob, a solo practitioner in Mechanicsburg, Pennsylvania.

Jacob’s request to the full 4th Circuit follows the decision by a three-judge panel of the court to uphold Ocean City’s ban in light of Biocic and town leaders’ sufficient showing that public opposition to women going topless remains strong.

Ocean City has not yet responded to the request for full court review and the 15-judge 4th Circuit has not stated when it will consider the request.

The case is docketed at the 4th Circuit as Chelsea C. Eline et al. v Town of Ocean City, Md., et al., No. 20-1530.

The three-judge panel, in ruling for Ocean City on Aug.4, noted that 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.

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 panel added in its published decision.

“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.

The five women sued Ocean City in 2018 in U.S. District Court in Baltimore after town 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.

The women are Chelsea C. Eline, Megan A. Bryant, Rose R. MacGregor, Christine E. Coleman and Angela A. Urban.