One of the precepts of the rule of law is that the laws apply to everyone equally. And the Equal Protection Clause of the U.S Constitution prohibits states from denying “any person within its jurisdiction the equal protection of the laws.” So when you have a law that only applies to women (like, for instance, Fort Collins’s statute saying, “No female who is ten (10) years of age or older shall knowingly appear in any public place with her breast exposed below the top of the areola and nipple”), that might be a red flag that a law doesn’t apply to everyone.
The good people at Free the Nipple sued Fort Collins, claiming the law discriminated against women. And a federal judge found that the group was likely to win their case and granted them an injunction to keep the city from enforcing the law. You can see that order below.
U.S. District Judge R. Brooke Jackson considered expert testimony regarding the physical differences of male and female breasts and research that indicated stereotyping female breasts as objects of desire objectifies women and contributes to higher rates of sexual assault and violence. Jackson also heard testimony from Fort Collins’s assistant police chief, who said that topless women might distract drivers and disrupt traffic.
In the end, Judge Jackson ruled in the women’s favor, finding the statute “perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” He added, “I find that the ordinance discriminates against women based on the generalized notion that, regardless of a woman’s intent, the exposure of her breasts in public (or even in her private home if viewable by the public) is necessarily a sexualized act.”
A Slippery Slope?
Jackson also rejected arguments that the law protected the public from a significant negative impact:
You can read the full ruling below:
Frankly, even if this ordinance were not on the books I doubt that women would be regularly walking through downtown Fort Collins with their breasts exposed, or parading in front of elementary schools, or swimming topless in the public pool, as defendant cautioned us during the hearing … As with many other legal behaviors, common sense and sensitivity to the feelings of others tells us that there is a time and a place … It seems to me that the primary focus here is the equal right of women to expose their breasts in public, not necessarily a plan to make it an everyday, everywhere routine.
Order: Free the Nipple v. City of Fort Collins by FindLaw on Scribd
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