A judge in Colorado has ruled that male and female breasts are equal and and ordinance in the city of Fort Collins allowing male breasts to be bared in public but banning the exposure of female breasts was discriminatory.
A federal judge on Wednesday granted a preliminary injunction that will prevent Fort Collins from enforcing a city ordinance that bans women from exposing their breasts in public, other than for breastfeeding purposes.
U.S. District Court of Colorado Judge R. Brooke Jackson handed down the ruling Wednesday four months after he allowed portions of the lawsuit to proceed on the grounds the ordinance violated the U.S. Constitution’s Equal Protection Clause.
The city of Fort Collins had sought to dismiss the claims that the statute violated the Equal Protection Clause after it successfully got some of the other initial claims in the suit tossed by Judge Jackson in October.
The statute in question, which said that “[n]o person shall knowingly appear in any public place in a nude state or state of undress such that the genitals or buttocks of either sex or the breast or breasts of a female are exposed,” was revised in November 2015.
Judge Brooke wrote:
“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 were made uncomfortable. In our system, however, the Constitution prevails over popular sentiment.”
“I do not accept the notion, as some of those courts have, that we should continue a stereotypical distinction ‘rightly or wrongly,’ or that something passes constitutional muster because it has historically been part of ‘our culture.
We would not say that, rightly or wrongly, we should continue to recognize a fundamental difference between the ability of males and females to serve on juries…Or between male and female estate administrators…or between military cadets…or between the ability of males and females to practice law…nor should we.”
“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 those who have reassessed their thinking.”
The Fort Collins City Attorney responded with this statement:
“In light of the Order issued Wednesday, the City is prohibited for now from citing women for exposing their breasts in public under the City Code, pending a final decision in this 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.
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.”
In New Zealand in 2012 Stuff reported in Nudity not necessarily an offence
Section 27 of the Summary Offence Act 1981 classifies indecent exposure as occurring when a person who, in or within view of any public place, intentionally and obscenely exposes any part of his or her genitals.
Bare breasts are not indecent exposure.
However, that does not mean a topless sunbather will be safe, at least in the New Plymouth district.
A bylaw passed in 2008 prohibits any person to be or remain upon any part of a beach unless properly and sufficiently dressed.
The Bill of Rights should at least ensure equal rights for any gender.