City officials having to consider legality of women being topless in public

Metro Creative

People across the country have seen headlines and social media posts announcing that women in Oklahoma and a few other states can now legally go topless in public. The claim is provoking celebration from some, consternation from others and spirited, sometimes heated, discussions between many.

But is it true? And if so, why?

The answer seems to be “Yes, but...” and can vary depending on local interpretation. Stillwater officials say the City’s answer is a definitive yes.

What does this mean in Stillwater?

Although there is a certain titillation factor surrounding women's breasts in our society, the issue is only on its surface about showing skin. At its heart, it's about equality.

Simply put, the appeals court decision means that the bare chests of men and women have to be treated the same under the law. If men are allowed to go shirtless, so are women. If men are required to wear shirts, women can also be required.

This includes private businesses and public areas like the municipal swimming pool or public parks.

Businesses are allowed to enact policies requiring certain dress standards, as in “no shirt, no shoes, no service” but they have to apply across the board.

City Manager Norman McNickle said the City of Stillwater is placing such a sign at City Hall and he foresees many businesses doing the same thing.

Deputy City Attorney Dennis McGrath says the simple act of walking around without a shirt on may not be a crime but other behavior could still carry criminal penalties.

“It all depends on the facts,” he said.

Behaving in an overtly sexual manner or photographing a minor who is topless could still be a crime, especially if that image is shared with someone else. Child pornography charges could be filed in a case like that, he said.

It comes down to intent, McGrath said. If the intent is to create arousal or for some sexual purpose, that still crosses the line of legality.

Stillwater’s ordinance allows people engaging in a range of behavior from urinating in public to sexual activity to be charged with “Outraging Public Decency.” That’s the law that would also have been used to charge women who exposed their breasts in public.

The municipal citation carries a fine of $260, McGrath said.

He says Stillwater hasn’t traditionally seen many women charged under the ordinance anyway. If it did happen, it was usually in connection with another charge like Public Intoxication, he said.

Local Reaction

The issue prompted a lot of talk on social media forums.

Some applauded the equal treatment of men's  and women's bodies, others expressed concerns about what they see as lowered standards of behavior and still others discussed whether it would prompt sexual harassment and assaults or encourage young women to put themselves at risk of exploitation.

A few men took offense at the notion that they were incapable of self-control.

Kimberly Kay also took issue with another media outlet’s quote from a law enforcement official who said seeing a woman’s bare breasts could trigger some offenders and put women in danger.

“That line is the problem that we should be discussing, not whether or not women going topless is a problem,” she wrote. “This line is the ‘rape culture’ that has brought us where we are today in regards to the #metoo movement and all the other discussions regarding rape. Women’s bodies are NOT the problem. PREDATORS are the problem.”

Alora Thompson took the stance that it’s not about sex.

“I feel like we have bigger problems in this state than breasts. They’re literally just breasts. Nothing more, nothing less,” she wrote. “If you feel like showing them off then do you. I am proud of your confidence.”

Janie Venable expressed support for more traditional standards of behavior and called it a matter of respect.

“Just wear the d---- clothes and be respectful to those who do have morals. Problem solved!” she wrote. “I am so glad to have grown up in the times when we were taught to respect ourselves and others.”

As people reacted across the state, the Philbrook Museum of Art in Tulsa showed its social media game with a Facebook post featuring a screen shot of a news story about the decision and the comment "Way ahead of you." It included photos of three classical sculptures of women with bare breasts.

How did it happen?

The ruling that paved the way for women to go topless in public came out of the U.S. 10th Circuit Court of Appeals on Feb. 15. The City of Fort Collins, Colorado appealed a district court’s injunction that prevented the city from enforcing its public nudity ordinance that made appearing topless in public or in a private place that could be seen from a public area a misdemeanor. The offense carried a fine of up to $2,650 and up to 180 days in jail, or both. The law applied only to women and girls over the age of 10.

The law would not have applied to breastfeeding mothers.

In 2016, Brit Hoagland and Samantha Six, acting as Free the Nipple-Fort Collins filed suit to challenge the law, claiming it violated their constitutional rights to free speech under the First Amendment and equal protection under the 14th Amendment.

The district court rejected their First Amendment claim but allowed their equal protection claim to move forward. The district court found that the ordinance likely violated the Equal Protection Clause under the 14th Amendment and blocked the city from enforcing its public nudity ordinance “to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public.”

It left a state claim under the Colorado constitution’s Equal Rights Amendment to be decided by state courts.

After the district court issued its injunction in 2017, the City of Fort Collins appealed to the U.S. 10th Circuit Court of Appeals, which reviewed the lower court’s decision and declined to overturn it. It filed a final judgment in July and closed the case.

The city’s final option would have been asking the the U.S. Supreme Court to review the issue.

The Coloradoan reported that some residents and city leaders wanted to keep fighting because they felt the issue had national significance but the City Council ultimately decided there were better uses for city funds. The ordinance was removed from the city code Sept. 17.

The battle cost the City of Fort Collins $120,000 for its legal fees and a negotiated settlement of $202,000 in legal fees for the plaintiffs.

“I supported the appeal of (the district court ruling regarding) the original ordinance that we wrote, but it became clear to me that it wasn’t going to go where we wanted it to go and was going to continue to cost the city large amounts of money,” City Council member Ross Cunniff told the Coloradoan. “We did our best. It didn’t work, and so we should simplify.”

Where does it apply?

The U.S. 10th Circuit Court of Appeals is based in Denver and its decisions are binding in six states: Colorado, Wyoming, Utah, Kansas, New Mexico and Oklahoma, which is divided into an Eastern District, Northern District and Western District.

The 10th Circuit issues federal rulings, which supersede state and local laws, means any state or local ordinance that conflicts with the ruling is not enforceable, McGrath said. Women can’t be prosecuted in those six states simply for appearing topless in public, he said. That includes an Oklahoma state law that requires at least the nipple area to be covered.

People in other places weren’t initially as convinced.

The Salt Lake Tribune interviewed a civil attorney who represents multiple cities in Utah. He said someone who wants to knock down similar laws in that state would have to challenge them in court. Some Utah strip clubs whose dancers are required to wear nipple covers are interested in taking on that challenge ,The Tribune reported.

Other courts have been more willing to disregard claims of discrimination and uphold laws like the Fort Collins ordinance.

Quotes from the 10th Circuit ruling

“’No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const. amend. XIV, § 1. The Equal Protection Clause, as the U.S. Supreme Court has interpreted it, directs ‘that all persons similarly situated should be treated alike’“

“Gender, for instance, ‘frequently bears no relation to ability to perform or contribute to society,’  and statutes that differentiate between men and women ‘very likely reflect outmoded notions’ about their ‘relative capabilities.’ Id. at 440–41 (quoting Frontiero v. Richardson, 411 U.S. 677, 686 (1973)). As a result, gender-based classifications ‘call for a heightened standard of review.’”

“We’re left, as the district court was, to suspect that the City’s professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.’”

Twitter: @mcharlesNP

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