A monumental ruling recently occurred when U.S. District Court Judge R. Brooke Jackson granted an injunction halting a Fort Collins ordinance that prohibits women from showing their breasts in public. Essentially, the judge ruled that there is no absolute difference between male and female breasts and that barring women from going shirtless is discrimination.
Jackson wrote:
“I find that the ordinance discriminates against women based on the generalized notion that, regardless of a woman’s intent, the exposure of her breasts in public (or even in her private home if viewable by the public) is necessarily a sexualized act. Thus, it perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.”
The news is being celebrated by advocates of the ‘Free the Nipple’ campaign who believe barring women from showing their breasts in public is unconstitutional. The movement was founded in 2016 after Fort Collins enacted ordinance No. 134 which bans girls and women older than ten years old from exposing their nipples in public spaces. That is, unless they are breastfeeding. At the time, city officials argued that allowing females to publicly expose themselves would cause distractions among drivers and pedestrians, resulting in “public disorder.” Those who broke the ordinance faced up to a $2,650 fine and imprisonment for 180 days.
Shortly after, ‘Free the Nipple’ founder, Brittiany Hoagland, and member Samantha Six filed for a preliminary injunction “alleging that the public nudity ordinance was one of the most restrictive in the nation,” reports the Denver Post.
The federal judge ruled against the city’s claim that the ordinance protected children and maintained public order. He also ruled that the order did not discriminate, as male and female breasts are different. In effect, an equal protection issue was not raised.
Jackson wrote that glimpsing a female breast does not endanger children because due to breastfeeding, it is the first thing a child sees. He also mentioned that a child of any age could possibly see a woman’s breast while she breastfeeds, which is allowed by the ordinance. No one suggested they are harmed by that experience, however.
“It seems, then, that children do not need to be protected from the naked female breast itself but from the negative societal norms, expectations, and stereotypes associated with it,” wrote Jackson.
Denver civil rights attorney David Lane supported the judge’s decision, stating:
“It makes great sense. Any statute that has the words in it ‘Women are prohibited from’ is almost certainly unconstitutional.”
Not all were pleased by Jackson granting the injunction, however. City attorney Carrie Daggett implied that the city would review the judge’s decision and prepare a counter-plan.
“While the judge has acknowledged the other cases upholding similar laws, he concluded he is likely to find the city’s restriction on female toplessness in public is based on an impermissible gender stereotype that results in a form of gender-based discrimination,” she said in a statement.
Judge Jackson pointed out that even though it is now legal for women to be in public while topless in Fort Collins, Colorado, the incident is not likely to become a norm. He wrote:
“Frankly, even if this ordinance were not on the books I doubt that women would be regularly walking through downtown Fort Collins with their breasts exposed, or parading in front of elementary schools, or swimming topless in the public pool, as defendant cautioned us during the hearing.”
“As with many other legal behaviors, common sense and sensitivity to the feelings of others tells us that there is a time and a place. It seems to me that the primary focus here is the equal right of women to expose their breasts in public, not necessarily a plan to make it an everyday, everywhere routine,” he added.
Acknowledging that the ruling might upset individuals based on their personal beliefs, he commented that the ruling was made because the “concerns are outweighed by the constitutional rights of others.”
“Unfortunately, our history is littered with many forms of discrimination, including discrimination against women,” explained Jackson. “As the barriers have come down, one by one, some people were made uncomfortable. In our system, however, the Constitution prevails over popular sentiment.”
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