FORT COLLINS, Co. — A federal judge appointed to the bench by then-President Barack Obama has ruled that a Colorado law banning women from going topless is public “discriminates against women” and infringes upon their constitutional rights.
“I find that plaintiffs have put forward a convincing case that [the law] is based on an impermissible gender stereotype that results in a form of gender-based discrimination,” U.S. District Judge R. Brooke Jackson wrote on Feb. 22.
“Unfortunately, our history is littered with many forms of discrimination, including discrimination against women,” he wrote. “As the barriers have come down, one by one, some people were made uncomfortable. In our system, however, the Constitution prevails over popular sentiment.”
The City of Fort Collins had passed a law in November 2015 that banned females age 10 or older from bearing their breasts fully in public, with the exception of breastfeeding mothers. Those who violate the law could face fines more than $2,000 or jail time.
But a gender equality group that advocates toplessness filed suit against the law in May, asserting that it was “discriminatory against girls, women, and LGBTQIA persons” because it allows men to go shirtless but not women.
The City of Fort Collins, and its representatives, argued in court that the law was necessary to protect children, to keep public peace and order, and to prevent distractions in traffic.
Jackson, in issuing a temporary injunction, asserted that society had wrongly created a sexual stereotype about toplessness, and said that children don’t need to be protected from seeing breasts because they have already seen them via their breastfeeding mothers.
“The female breast, after all, is one of the first things a child sees,” he wrote. “… It seems, then, that children do not need to be protected from the naked female breast itself but from the negative societal norms, expectations, and stereotypes associated with it.”
“At bottom this ordinance is based upon ipse dixit—the female breast is a sex object because we say so,” Jackson stated. “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.”
He therefore agreed with the gender equality group that the law prohibiting toplessness is discriminatory and violates the Equal Protection Clause of the United States Constitution.
“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,” Jackson wrote.
“I find that the ordinance discriminates against women based on the generalized notion that, regardless of a woman’s intent, the exposure of her breasts in public (or even in her private home if viewable by the public) is necessarily a sexualized act. Thus, it perpetuates a stereotype engrained in our society that female breasts are
primarily objects of sexual desire whereas male breasts are not,” he said.
Jackson also noted that he recognizes “that for many people prohibiting females to be topless in public remains a significant issue of personal morality,” but added that he finds “such concerns are outweighed by the constitutional rights of others.”
The City of Fort Collins is now considering its options for appeal.