Constitutional Law

Federal judge goes out on a 'lonely limb' and blocks Colorado town's ban on topless women

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A federal judge in Denver has blocked enforcement of a Fort Collins ordinance that bars women, but not men, from exposing their breasts in public.

U.S. District Judge R. Brooke Jackson issued a preliminary injunction in a Feb. 22 order, report the Associated Press, USA Today and the Denver Post. He ruled in a case brought by a group called Free the Nipple.

Jackson said the ordinance likely violates the equal protection clause. The ordinance “perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not,” he wrote.

The ordinance bars public exposure of the breast below the top of the areola and nipple, except for girls younger than age 10 or women who are breast-feeding. Violation of the law, which also bars both sexes from exposing their genitals or buttocks in public, carries a fine of up to $2,650 and potential prison time of up to 180 days.

Jackson said other courts considering the issue have ruled differently, but he “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.”

Jackson cited testimony by a researcher who said the stereotype that female breasts are objects of desire was created through sexual objectification of women, which contributes to higher rates of sexual assault and violence. According to the researcher, the stereotype serves the function of keeping women in their place.

Jackson said he was skeptical of testimony by the city assistant police chief, who said that topless women might distract drivers and disrupt traffic. Nor has the city produced meaningful evidence that topless women endanger children, Jackson said.

“At bottom, this ordinance is based upon ipse dixit—the female breast is a sex object because we say so,” Jackson wrote. “That is, 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. The irony is that by forcing women to cover up their bodies, society has made naked women’s breasts something to see.”

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