Tenth Circuit Upholds Free the Nipple Ruling

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By George Khoury, Esq. on February 19, 2019 10:15 AM

The Fort Collins, Colorado ban on women being topless in public garnered quite a bit of attention when the law was passed, and then again when the law was struck down by the district court. And now, the Tenth Circuit Court of Appeals has upheld the district court's injunction blocking the law, setting up a challenge for the Supreme Court.

The law, as the Tenth Circuit and district court saw it, is simple, blatant, and clear gender discrimination. It literally treats men and women unequally expressly because of their gender.

Free the Nipple

Notably, the case was brought by a nonprofit organization by the name of Free the Nipple. Check out the order for yourself. That is the actual party name, and it is even listed first.

The appellate court noted that if it were to reverse the injunction, then all the women in Fort Collins who might choose to go topless in public could face criminal sanctions while men would not. The appellate court explained that the city's logic is flawed because it is premised upon the idea that only female breasts are sexual in nature.

The appellate court recognized that this exact issue is unresolved among the circuits, which means that it could be a ripe issue for the High Court to take on. But there has been no word on whether the city will be petition for cert.

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