NEWS

Advocates sue Fort Collins over topless ban

Kevin Duggan
kevinduggan@coloradoan.com
Samantha Six, left, waits to speak with the Fort Collins City Council in October. Six is a plaintiff in a federal lawsuit seeking to overturn the city's prohibition on women exposing their breasts in public.

A Fort Collins ordinance that bans women from appearing topless in parks and other public places is being challenged in federal court.

Representatives of the Free the Nipple movement on Tuesday filed a civil complaint in U.S. District Court in Denver claiming the city’s public nudity ordinance is unconstitutional and discriminates against women.

In their complaint, plaintiffs Brittiany Hoagland and Samantha Six allege the city’s regulation violates the free speech clause of the First Amendment as well as the equal protection clause of the Fourteenth Amendment.

The ordinance treats women and girls differently than men and boys in violation of equal rights required by the Colorado Constitution, according to the complaint.

Hoagland, who led an unsuccessful campaign last year to change local law regarding women exposing their breasts, said in a telephone interview the city left her no choice but to go to court.

It’s not right that males can appear in public without shirts but females cannot, she said.

“It’s a petty and sexist ordinance that shouldn’t have gone this far in the first place,” she said.

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Fort Collins officials had not been officially served with the lawsuit as of Tuesday afternoon but had seen online versions. Mayor Wade Troxell said he could not comment on pending litigation.

But Troxell added it appears the women and their attorneys are already trying the case “in the press” and “outside of Fort Collins.”

“I think the City Council thoughtfully addressed the topic … and there is strong support in the community for where we are at this time,” he said.

City Attorney Carrie Daggett declined to comment on the lawsuit.

If successful, the lawsuit could set precedent “for the whole of Colorado,” Hoagland said. The complaint notes that several Colorado communities, including Denver and Boulder, do not prohibit women from exposing their breasts. Other Colorado cities have restrictions similar to those in Fort Collins.

The lawsuit filed by well-known Denver attorney David Lane seeks injunctions preventing enforcement of the ordinance and a declaration that the ordinance is unconstitutional.

The complaint also asks for the city to cover the plaintiffs’ court costs and attorneys’ fees.

In a telephone interview, Lane said he thinks Hoagland and Six have a strong case.

“My clients believe that any statute that begins ‘women are prohibited from’ is per se unconstitutional,” he said. “I would tend to agree with that.”

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During a press conference at his office, Lane told reporters legal views change on formerly taboo topics, including gay marriage.

“Cultures have to change with different attitudes as the law requires,” Lane said.

Hoagland lives in Westminster but said she wants to continue the fight in Fort Collins to put the matter at rest.

Six, a Fort Collins resident, said at the press conference she is interested in “justice” and “permanent” gender equality.

In October, the City Council unanimously approved a change to the city’s public nudity law to prohibit exposing the female breast below the top of the nipple.

The law includes exceptions for breastfeeding women, medical emergencies and places where nudity would be expected, such as locker rooms.

The decision came in front of a packed house at City Council after dozens of residents told council members that allowing women to go topless would damage the community and its reputation.

At the time, Troxell said the sentiment of the community came through "loud and clear" during the contentious meeting as well as through the many emails and phone calls directed at council members leading up to the vote.

Lane predicted the case will likely take six months to a year to get through U.S. District Court. The losing side is likely to take any decision to the 10th Circuit Court of Appeals and potentially the U.S. Supreme Court, he said.

Kevin Duggan is a Coloradoan senior reporter covering local government. Follow him on Twitter, @coloradoan_dugg, and on Facebook at Coloradoan Kevin Duggan.