Fort Collins fights to keep topless ban

Fort Collins plans to appeal a federal judge’s decision to temporarily halt enforcement of the city’s ban on women appearing topless in public.

Attorneys representing the city on Tuesday notified the 10th Circuit Court of Appeals in Denver that they will appeal a preliminary injunction granted in February by U.S. District Court Judge R. Brooke Jackson that blocks a section of the city’s public nudity law.

In granting the preliminary injunction, Brooke stated he would likely rule in favor of members of the group Free the Nipple who sued the city claiming the ordinance violated the equal protection clause of the Constitution by discriminating against women.

Brit Hoagland and Sam Six are seeking a permanent injunction against the city’s topless ban.

The appeal will be considered by a three-judge panel that will review the record of the case as well as written briefs and possibly hear oral arguments before issuing its decision, said David Young, public relations coordinator for the city, in an email to the Coloradoan.

“We are seeking a higher court’s review of the District Court decision in light of the existing case law related to this legal issue,” Young said.

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The timeline for the court to hear the case and make a decision is not clear. The city is represented by staff attorneys as well as attorneys with the Denver law firm Hall & Evans LLC.

The potential cost of the appeals process can’t be predicted, Young said. Through early February, the city had spent $48,110 on outside legal counsel for the case.

Denver attorney David Lane, whose firm is representing Hoagland and Six, said the city “doesn’t have much of a chance” with its appeal.

“They are wasting a tremendous amount of taxpayer money to hide from female breasts,” he said.

Lane said the appeals process could take about a year. If the city loses the case, it would be expected to cover Hoagland and Six’s legal fees.

With the appeal, that could be around $150,000, Lane said.

In his ruling, Jackson stated he was not impressed with the city’s arguments that the ordinance was needed to maintain public order and “protect children.”

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The city also noted that the law is not unique and that many Fort Collins residents would be upset if the law were struck down, he stated.

“Unfortunately, our history is littered with many forms of discrimination, including discrimination against women. As the barriers have come down, one by one, some people have been made uncomfortable.

“In our system, however, the Constitution prevails over popular sentiment,” Jackson stated.

Jackson also noted that other courts across the country have supported arguments similar to those offered by Fort Collins regarding whether women may appear topless in public. The issue is about equal rights for women, he stated.

“After much thought, I have concluded that going out on this lonely limb is the right thing to do. I have no more right to fall back on ‘the way we have always done it’ than others who have reassessed their thinking.”

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