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What's Next for 10th Circuit Toplessness?

Blond girl topless on the beach, her back to the camera, sitting on the seashore. Portimão, Algarve, Portugal
By Laura Temme, Esq. on October 04, 2019 7:24 AM

In 2016, two women sued the city of Fort Collins, Colorado, alleging the city’s ban on women going topless in public was discriminatory. The 10th Circuit Court of Appeals upheld the federal judge’s finding that the ordinance was unconstitutional in February 2019. In September, after spending more than $300,000 defending the law, the city of Fort Collins decided it would not appeal the 10th Circuit’s ruling.

Time for a topless parade? Maybe not.

In theory, this decision means that it is legal for women to go topless in all six states in the 10th Circuit: Colorado, Utah, Wyoming, Kansas, New Mexico, and Oklahoma. However, a recent statement by Oklahoma’s Attorney General has at least the Sooner State taking a step back.

Oklahoma AG Says, “Keep Your Shirt On”

Attorney General Mike Hunter advised municipal governments in the state that the 10th Circuit’s ruling does not automatically invalidate state and local laws in Oklahoma regarding public nudity. Hunter points to decisions in surrounding circuits that have upheld laws prohibiting women from exposing their breasts in public. For example, in May the 8th Circuit upheld Springfield, Missouri’s topless ban. Hunter contends that because the city of Fort Collins opted not to appeal, the case has not been fully adjudicated; therefore, the ultimate constitutionality of the law is unknown. And now that the city has repealed the ordinance, it never will be.

Far From Resolved

In its opinion, the 10th Circuit acknowledged it was breaking away from the pack by finding the Fort Collins ordinance unconstitutional. However, the judges point out they are not alone in thinking that such laws violate women’s equal protection rights. In a 7th Circuit decision on the subject, the judges were split – a dissenting judge wrote: “Whether out of reverence or fear of female breasts, Chicago’s ordinance calls attention to and sexualizes the female form and imposes a burden of public modesty on women alone, with ramifications that likely extend beyond the public way.”

The Supreme Court has previously denied review of topless bans; however, the Court has not announced whether it will grant cert for the case regarding New Hampshire’s public nudity ordinance. Until then, there likely won’t be any more topless free skates in Tulsa.

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