OCEAN CITY — Ocean City gained a win this week in an appeal challenging the town’s ordinance prohibiting female toplessness in public, but the victory was tempered somewhat by an acknowledgment public sensibility on the issue may be changing.
A three-judge U.S. Fourth Circuit panel this week denied an appeal in a federal civil suit challenging the town’s ordinance prohibiting female toplessness in public in the same areas where men can be shirtless. The opinion released on Wednesday came after a U.S. District Court judge in 2020 granted the Town of Ocean City summary judgment in the federal case challenging the resort’s female toplessness ordinance.
In January 2018, a civil suit was filed in U.S. District Court challenging an emergency ordinance passed by the Mayor and Council in June 2017 prohibiting females from going topless in the same areas as men are allowed to go shirtless, including the beach and Boardwalk, for example. The plaintiffs in the case, including local resident Chelsea Eline and four others, argued the emergency ordinance passed by the Mayor and Council in June 2017 violated their constitutional rights allowing them, and ostensibly any other woman who chose to do so, to go topless in certain areas of the resort where men are allowed to go shirtless.
In April 2020, a U.S. District Court judge dismissed the case, essentially opining Ocean City officials have a better understanding of the public sensibilities of their residents and visitors regarding the issue of allowing women to go topless in the same public areas where men are allowed to go shirtless, including the beach and Boardwalk for example. The U.S. District Court’s ruling in the case relied largely on the precedent-setting U.S. v. Biocic case heard by the Supreme Court nearly three decades ago. In June 1989, a woman was cited and fined $25 for going topless on a beach in the Chincoteague National Wildlife Refuge in violation of the U.S. Fish and Wildlife regulations.
After the U.S. District Court judge dismissed the case, Eline and the other four plaintiffs filed an appeal in the Fourth Circuit, seeking to overturn the lower court’s ruling in favor of the Town of Ocean City. On Wednesday, the three-judge Fourth Circuit panel dismissed the appeal, effectively ending the issue.
During testimony at the U.S. District Court level, Mayor Rick Meehan, former Councilmember Mary Knight and former Ocean City Chamber of Commerce Executive Director Melanie Pursel testified the ordinance passed in 2017 reflected the general public’s sensibilities regarding female toplessness. The plaintiffs countered with a report and testimony from a noted expert on the changing public sensibilities regarding female bare-chestedness in public.
Town officials cited numerous calls, emails and letters from concerned citizens about the female topless issue in the resort. The plaintiffs countered the sample size of the pushback- roughly 100 calls and emails or so- did not reflect the sentiments of the roughly eight million people who visit the resort each year and cited other cases around the country where female toplessness was upheld. In the end, the Fourth Circuit judges denied the appeal and upheld the town’s ordinance.
“To be sure, public attitudes about gender and sexuality are constantly changing and evolving, but our precedent has not changed,” the opinion reads. “As a three-judge panel, we may not overrule Biocic, and it has not been overruled by the Supreme Court. In any event, the plaintiffs’ arguments do not persuade us that the important government interest we recognized then is no longer important.”
However, the Fourth Circuit judges opined the plaintiffs’ case did have some merits.
“As far as being misguided, the plaintiffs point out that perceived public moral sensibilities have been used to justify government action that we now recognize to be unconstitutional, if not outright immoral,” the opinion reads. “On this issue, they have a point. The judicial legacy of justifying laws on the basis of the perceived moral sensibilities of the public is far from spotless. Some government action that we now rightly view as unconstitutional, if not immoral, has been justified on that basis.”
The three-judge panel opined despite some reservations, they were somewhat bound by the 30-year-old decision in U.S. v. Biocic.
“Even so, in this situation, protecting public sensibilities serves an important basis for government action,” the opinion reads. “Thus, following Biocic and the majority of the courts that have addressed the issue, we find no error in the district court’s determination that the provision in the ordinance prohibiting the public showing of female breasts furthers the important government interest of protecting the public sensibilities.”
The opinion released on Wednesday summarized the basis on which the appeal was denied.
“In sum, Ocean City has met its burden of showing the ordinance is substantially related to an important government interest,” the opinion reads. “The burden of proving the ordinance’s constitutionality rests with Ocean City, and it offered the only admissible evidence on the public sensibilities of Ocean City residents and vacationers. Accordingly, we find that Ocean City has met its burden of providing an exceedingly persuasive justification for treating the public showing of bare breasts by females and males differently in the ordinance. We further hold that the prohibition on public female toplessness is substantially related to the important government interest in protecting the public sensibilities of Ocean City.”
However, Fourth Circuit Chief Justice Roger Gregory issued his own opinion ostensibly leaving the door open for future consideration, if not in the Ocean City, at least in general.
“I agree that we must affirm the district court’s grant of summary judgement to Ocean City under United States v. Biocic,” the chief judge’s statement reads. “However, I write separately, concerned that Biocic’s reasoning is inconsistent with equal protection principles. Though we are bound by Biocic, the majority properly recognizes that some government action that we now rightly view as unconstitutional, if not immoral, has been justified by invoking the perceived moral sensibilities of the public. This case raises the question, then, of how we distinguish between the types of disparate treatment justified by a community’s public sensibilities and those that are not.”
The chief judge’s opinion raises the question of just where gender differences stop and start in regards to equality.
“At first glance, Ocean City’s ordinance seems innocuous enough,” the chief judge’s opinion reads. “It forbids public nudity and defines nudity in a way commonly understood across western societies. But we must take care not to let our analysis to be confined by the limits of our social lens. Suppose the ordinance defined nudity to include public exposure of a woman’s hair, neck, shoulders or ankles. Would that law not run afoul of the Equal Protection Clause? While the ordinance here imposes a much narrower restriction on women, this is only a difference in degree, and not in kind.”
The plaintiffs’ attorney Devon Jacob was quick to respond to the Fourth Circuit opinion released on Wednesday denying the plaintiffs’ appeal in the Ocean City case.
“While my clients and I are disappointed with by the Fourth Circuit’s decision, we are encouraged by Chief Gregory’s statement that the court should consider Biocic and apply greater scrutiny to fulfill the full promise of equal protection,” the statement reads. “My clients and I intend to provide the court with an opportunity to do so, and with a renewed chance to elevate women to equal status with men in Ocean City.”