The Volokh Conspiracy

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Ban on Toplessness for Women Doesn't Violate the Equal Protection Clause

The Eighth Circuit sticks with its earlier views on the subject, but earlier this year the Tenth Circuit departed from the majority view on the subject.


Today's case is Free the Nipple, Inc. v. City of Springfield (8th Cir.); here's the court's summary of the breakdown of the cases:

The majority of courts considering equal protection challenges have upheld
similar laws prohibiting women, but not men, from exposing their breasts. See e.g.,
Tagami v. City of Chicago, 875 F.3d 375, 377, 379–80 (7th Cir. 2017); United States
v. Biocic, 928 F.2d 112, 115–16 (4th Cir. 1991); Craft v. Hodel, 683 F. Supp. 289,
299–301 (D. Mass. 1988); Tolbert v. City of Memphis, 568 F. Supp. 1285, 1290
(W.D. Tenn. 1983); State v. Lilley, 2019 WL 493721, at *3–5 (N.H. Feb. 8, 2019).
But see Free the Nipple—Fort Collins v. City of Fort Collins, 916 F.3d 792, 802–05
(10th Cir. 2019) (equal protection challenge to ordinance prohibiting women from
exposing nipple likely to succeed on merits); People v. Santorelli, 80 N.Y.2d 875,
882–83 (1992) (Titone, J., concurring) (statute prohibiting women from exposing
nipple violated Equal Protection Clause).

Fort Collins didn't ask the Supreme Court to review the Tenth Circuit decision, but that may have been because the case involved only a preliminary injunction, a factor that tends to cut against Supreme Court review. If the injunction is made permanent (as I expect it will be), Fort Collins may again appeal and then ask the Supreme Court to hear the case.

You can the substantive arguments in favor of the majority view in the earlier Eighth Circuit precedent (Ways v. City of Lincoln)—or, better yet, State v. Lilley, the more thorough New Hampshire decision on this from earlier this year. And you can read the minority view in the Tenth Circuit case. Thanks to Howard Bashman (How Appealing) for the pointer.