Appeals court hears Fort Collins topless ban arguments
Nick Coltrain
The attorney arguing for women’s rights to go topless in Fort Collins left an appeals court hearing Wednesday optimistic about a potential landmark victory.
The federal 10th Circuit Court of Appeals responded to oral arguments Wednesday morning with apparent skepticism about the fundamental difference between male and female breasts and whether allowing women to bare their breasts would result in societal turmoil, arguments made in support of the city's ban.
The three-judge panel also picked at whether the city’s ban on female toplessness resulted in true discrimination against women or simply erred toward societal norms and discrimination of a more superficial variety.
A ruling isn’t expected for two to four months, said Free the Nipple attorney Andrew McNulty, and it’s difficult to decipher the panel’s intent beyond its poking and prodding at arguments from both sides. But he was nonetheless hopeful.
“It’s nearly impossible to read the tea leaves, but I was very pleasantly surprised at how receptive the panel was to our argument, and I’m optimistic about our chances," McNulty said after the hearing.
Attorney Andrew Ringel, who is representing the city of Fort Collins in its appeal of an earlier ruling against the topless ban, declined to comment.
A federal district court ruled in February that the city's ban on female toplessness in public violates the equal protections clause of the 14th Amendment. The city's attorneys argued that the ruling was misguided and women's and men's bodies are different, and need to be regulated differently.
"Fundamentally, the difference is women have breasts that are considered private parts, and men have breasts that are not considered private parts," Ringel argued Wednesday.
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He gave examples of adult nudity in places like the changing areas of public pools causing disruption and said allowing it to happen citywide would be an invitation to further disorder, including the possibility of topless women being attacked or otherwise forced to cover up. Judge Mary Beck Briscoe shot back that public breastfeeding is allowed in the city, and to see a female breast in that context doesn't seem to cause widespread scandal.
"A breast is a breast, is it not?" she asked.
"A female breast is a female breast, your honor," Ringel responded.
This case is one of only two that has actually gone to trial, despite similar lawsuits against bans on female toplessness, McNulty said. Ringel used those 19 other cases — brought to a variety of courts at state and federal levels, and largely dismissed before trial — as evidence that the ban is based on accepted societal norms and not discriminatory practice.
When McNulty argued those cases were dismissed because complainants didn't have a chance to present evidence, Judge Harris L. Hartz pushed back on that issue.
"It's not really accurate to say, 'We had evidence and they didn't,'" Hartz said. "The other cases seemed to say, it didn't matter what evidence they had."
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Briscoe questioned if the ban on female toplessness was discriminatory to the point of having a negative effect on women, either in an economic way or on their place in society. McNulty responded by asking whether banning certain people from lunch counters was discrimination of real consequence, a hearkening back to Jim Crow laws in the South. The ban fundamentally treats people different based on their gender, he argued.
"(The ban) says women's breasts are inherently sexual, and women should dress in certain ways because their breasts are inherently sexual," McNulty said.
Samantha Six, one of the original plaintiffs, was at the hearing. While she wants to avoid speculating on the panel's thought process, she was hopeful Free the Nipple would prevail. She pointed out what she called incongruous positions in the city, saying they're concerned with hypothetical topless women outside of schools but meanwhile promote festivals like Tour de Fat.
"The argument that they have is that women's breasts will create pandemonium in the streets, but they allow functions like Tour de Fat to happen where women are encouraged to dress very scantily clad," Six said. "... I find it confusing for them to be worried about women parading in front of elementary schools topless when they spend so much time and effort promoting events that would allow women to dress in an inch less of fabric that I would say is required to cover a full breast."