Fort Collins, Colorado has decided it’s not worth the money to fight for its ordinance banning women from appearing topless in public.
It’s a victory for “Free the Nipple,” a global movement seeking equal treatment for women.
In February, when it was cold enough that few would want to go topless in the community north of Denver, the Tenth Circuit Court of Appeals upheld a federal judge’s conclusion that the law amounted to unconstitutional discrimination. It was based on “negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects,” the court concluded.
The ruling rejected the city’s concern that striking down the ordinance would lead to women “parading in front of elementary schools or swimming topless in the public pool.” The nearby communities of Boulder and Denver allow female toplessness, but there was no evidence of “any harmful fallout” in those cities, the court said.
Fort Collins decided this month not to appeal the decision, having spent more than $300,000 defending the law. And now the city has formally removed the law from its public nudity statutes. The prohibition on public exposure of breasts by women and girls over 10 years old is now gone from the city code as of this week.
With no guarantee of success in the Supreme Court, the city council concluded “that the money was just better spent on other city priorities,” said Tyler Marr, a Fort Collins government spokesman. The decision not to fight the ban effectively makes it legal for women to go topless in the six states that fall under the 10th Circuit: Wyoming, Utah, Colorado, Kansas, New Mexico, and Oklahoma.
Most other courts have rejected equal-protection challenges to bans on female toplessness, as the Tenth Circuit acknowledged in its February ruling, saying “ours is the minority viewpoint.”
But the ruling said the trend has been toward “requiring more— not less— judicial scrutiny when asserted physical differences are raised to justify gender-based discrimination.”
A challenge to a local topless ban in New Hampshire is now pending before the US Supreme Court, brought by three women who appeared topless at a lakeside beach. The state supreme court acknowledged that the law threats men and women differently. But it said public exposure of the female breast “almost invariably conveys sexual overtones.”
The U.S. Supreme Court will announce later this year whether it will hear the case.