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Women wage Supreme Court challenge to Ocean City’s topless ban

Five women are urging the U.S. Supreme Court to 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, saying protecting “public sensibilities” cannot justify gender discrimination.

In papers filed with the high court last week, the women said the ordinance violates the Constitution’s guarantee of equal treatment under the law. They are asking the justices to review and overturn a 4th U.S. Circuit Court of Appeals decision that the gender-based prohibition passes constitutional muster because it is “substantially related to the important governmental interest in protecting the public sensibilities of Ocean City.”

In the women’s petition for review, their attorney stated the ordinance “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.”

Devon M. Jacob cited the Supreme Court’s 2003 decision in Lawrence v. Texas, in which the justices rejected public sensibilities as a justification in striking down a law that banned sexual relations between members of the same sex.

Likewise, “Ocean City relied on the traditional moral sensibilities of a minority group of people to justify a gender-based classification that denies the equal protection of the law to all females,” wrote Jacob, a solo practitioner in Mechanicsburg, Pennsylvania. “Ocean City’s ordinance that is intended to protect traditional moral sensibilities perpetuates a stereotype ingrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.”

Ocean City has until Jan. 7 to reply to the women’s request for Supreme Court review. The justices have not stated when they will vote on the request.

The case is docketed at the Supreme Court as Chelsea C. Eline et al. v. Town of Ocean City, Md., No. 21-850.

The 4th Circuit, in upholding the ordinance in August, 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 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 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 overturned by the Supreme Court.

Gregory advised the high court, if it chooses to hear the case, 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.”

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 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.