The U.S. District Court issued a ruling Tuesday upholding an Ocean City law enacted in 2017 that prohibits female toplessness in public spaces such as the beaches and the Boardwalk. A central issue addressed in the case was whether the local elected government was best positioned to gauge the resident’s sensibilities.
In 2016 an Ocean City resident and later plaintiff in the case asked the Town of Ocean City whether women were permitted to go topless in public. This sparked concern from the community and local government that regard the Town as a family-friendly resort. The Town then enacted an emergency ordinance that was challenged through a 2018 lawsuit alleging that the ban violated the equal protection clause as it prohibits only female toplessness.
The Court ruled that the ban on female toplessness did not violate the equal protection clause, citing 2019 case law from the city of Springfield, Illinois:
ordinance banning female toplessness did not violate the equal protection clause because it was “substantially related to [city’s] important governmental interests in promoting public decency and proscribing public nudity to protect morals, public order, health, and safety
The Ocean City Mayor and Council unanimously supported the ban and argued that as elected officials they were able to judge the public’s sensibilities. The plaintiffs in the case argued that the ordinance was not aligned with changing public perception, and that Ocean City’s government was not reflective of “public sensibilities of residents and visitors.” The Court rejected this claim, stating:
Elected representatives best speak for and represent the views of their constituent communities because, as the testimony of Mayor Meehan and Council Member Knight demonstrates, community members go to their elected representatives with their fears and hopes for their community. The elected representatives then take action to reflect those concerns, as occurred here with the passing of the Ordinance. If the constituents believe their elected representatives are no longer listening to their concerns or accurately speaking for them, then the community may vote those representatives out of office.
From coverage in The Dispatch:
The plaintiffs relied heavily on the report and testimony of noted University of Indiana professor Dr. Debra Herbenick about the changing public sensibilities regarding female bare-chestedness in public. In the end, U.S. District Court Judge James Bredar ruled the town’s elected officials were better suited to assess their community’s public sensibilities on the topless issue and ruled in favor of Ocean City, granting the town’s motion for summary judgment on Tuesday.
“Ocean City’s stated purpose for enacting the ordinance is that protecting the public sensibilities is an important governmental interest,” the memorandum in support reads. “The court has held that protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones is an important government interest under the equal protection analysis.”
Council Secretary Mary Knight, who testified in the case during a preliminary injunction hearing, said on Tuesday the judge’s dismissal of the case was welcome news for Ocean City and the majority of its residents and visitors.
“This is great news and the ruling definitely reflects the sensibilities of our visitors,” she said. “In my 14 years serving on the council, by far this subject was the one that I received the most calls, emails, and comments about asking the town to fight to preserve our family atmosphere. I am very happy with the ruling.”
For more information read the full U.S. District Court opinion.