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Colorado makes Equal Protection headway against criminalizing bared women’s breasts

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On February 22, 2017, a Colorado federal trial judge bucked the nation’s widespread judicial decisions permitting the criminalization of bared women’s breasts. Free the Nipple – Fort Collins v. City of Fort Collins, Civil Action No 16-cv-01308-RBJ (D. Co., Feb. 22, 2017).

Judge R. Brooke Jackson (D. Co.) — a 2010 Obama appointee — granted a preliminary injunction against Fort Collins’s following criminal ban (carrying up to six months in jail) on bared women’s breasts:

“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 while located [in a public place].” Fort Collins, CO., Mun. Code § 17-142(b) (2015).

While Free the Nipple acknowledges that “other courts that have confronted laws similar to § 17-142 have supported either or both of Fort Collins’ arguments.” Free the Nipple explains its conclusion that the 14th Amendment’s Equal Protection Clause bars criminalizing women’s bared breasts:

“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 others who have reassessed their thinking. See Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (‘As a result of notions such as [women should occupy the “domestic sphere” whereas men should occupy “civil life”], our statute books gradually became laden with gross, stereotyped distinctions between the sexes.’). I find that plaintiffs have put forward a convincing case that § 17-142 is based on an impermissible gender stereotype [of the sexualization of women’s breasts] that results in a form of gender-based discrimination. I therefore conclude that plaintiffs have demonstrated a strong likelihood that they will succeed at the permanent injunction trial in establishing that § 17-142 as enacted violates the Equal Protection Clause of the United States Constitution.”

Free the Nipple

Free the Nipple is not completely alone, because in 1992, New York’s highest court also invalidated the criminalization of the non-commercial baring of women’s breasts. People v. Santorelli, 80 N.Y.2d 875, 600 N.E.2d 232 (1992).

Virginia law criminalizes indecent exposure as a Class 1 misdemeanor, jailable up to one year. Va. Code § 18.2-387:

“Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor.”

A lawyer representing a Virginia indecent exposure defendant might include an argument that the statue is unconstitutionally vague and over broad, including when applied to female breasts. However, I am not optimistic that the Commonwealth’s trial and appellate courts will see it that way, when the indecent exposure’s exclusion of baring of breasts for nursing (thus suggesting that all other public breast baring constitutes indecent exposure) and when the Virginia Code defines nudity (even though “nudity” is not in the indecent exposure statute) as:

“[A] state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple…”

Va. Code § 18.2-390.

The key to challenging the Constitutionality of laws banning public exposure of women’s breasts is not to claim free expression, even though the Supreme Court recognizes limited First Amendment – related expression in female breast baring for entertainment, City of Erie v. Pap’s A.M., 529 U.S. 277 (2000). The key is to argue Equal Protection under the Fourteenth Amendment.

Attorney James Kozlowski recently discussed various courts’ handling of bans on bared female breasts, including the free expression versus Equal Protection arguments.

Free the Nipple makes a great point about the gender stereotype of the sexualization of women’s breasts. If bared female breasts are such a risk of causing dangerous sexual arousal, does that mean that legislators may also outlaw women from wearing skimpy shorts on the street and bikinis on the beach? People get sexually aroused at all manner of images, and the onus should be on themselves for that arousal. Free the nipple.