Judge slams Fort Collins for discriminatory public nudity ordinance, halts enforcement of the entire ordinance
Denver, Colo. — A federal judge slammed Fort Collins for enacting a discriminatory public nudity ordinance that also runs afoul of Colorado’s state law, state constitution and Equal Rights Amendment.
District of Colorado Judge R. Brooke Jackson wrote the ordinance — which mandates women will not knowingly expose their breasts in public — is rooted in discrimination against women. He did not immediately rule on whether the ordinance, which exempts breastfeeding, violated the freedom of expression clause of the First Amendment or whether the ordinance was also discriminatory against men because it allowed mothers to be “partially nude when nursing” – two of the other claims made in the combined lawsuit.
“Thus, it perpetuates a stereotype ingrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not,” he wrote in his order.
Judge Jackson granted Brit Hoagland and Sam Six’s request for a preliminary injunction and said they are likely to succeed at a permanent injunction. He wrote he would find the ordinance unconstitutional when the case goes to trial.
He promptly and correctly put the city lawyers’ chief arguments that the law maintains public order and protects children into the shredder. He cited testimony by Fort Collins Police Services assistant chief Jerry Schiager, who told the court topless women would cause distracted driving and traffic issues, which Jackson said “amounts to little more than speculation”.
Judge Jackson also annihilated the city’s inability to provide “meaningful evidence” to support its argument that the sight of a female breast endangers children.
Carrie Daggett, the attorney for Fort Collins, issued a statement Wednesday, saying the city would no longer cite women for exposing their breasts in public, pending a final decision in the case.
“While the judge has acknowledged the other cases upholding similar laws, he concluded he is likely to find the city’s restriction on female toplessness in public is based on an impermissible gender stereotype that results in a form of gender-based discrimination,” she wrote. “The city is reviewing the judge’s decision in this case and city legal, policy and enforcement staff will be considering the city’s options for next steps in light of the order.”
Had the city not exempted breastfeeding when re-writing the ordinance nine months ago, Free the Nipple would have lost this case.
Ms. Hoagland said the preliminary injunction is a “historic victory”.
She said the fight over the topless ban was not as important as the fight over the right to vote or other current social justice issues but that the injunction was important because it granted privileges to women that men had all along.
“It’s a huge relief,” said Ms. Hoagland. “It is definitely a big win.”
Judge Jackson cited evidence including testimony by the chair of Colorado College’s psychology department that sexual objectification of genitals and the female breast directly contributes to higher rates of sexual assault and violence as factors in his decision.
“The naked female breast is seen as disorderly or dangerous because society, from Renaissance paintings to Victoria’s Secret commercials, has conflated female breasts with genitalia and stereotyped them as such,” wrote Judge Jackson.
The complaint, filed nearly nine months ago, alleges the city of Fort Collins violated the free speech and free exercise clauses in the First Amendment to the US Constitution and the equal protection clause of the 14th Amendment and that the city’s decision to allow breastfeeding but not allow women toplessness definitively added to the violations of the latter. The local effort by Free the Nipple is part of a domestic and worldwide movement to end bans on women and girls being topless in public.
Neighboring cities, including Denver, have no gender-specific indecency laws, according to the Associated Press.
Public nudity is protected under Colorado state law, state constitution and Equal Rights Amendment.
Free the Nipple is a civil rights organization based in Miami, Fla.