Local Agencies Still Waiting For State’s Legal Opinion On Topless Freedom Debate

File photo by Chris Parypa

OCEAN CITY — With the arrival of another summer season, local law enforcement is still waiting for an opinion from the Maryland Attorney General on the legality of women going topless in the same areas where men are allowed to go shirtless under the Equal Protection Act.

Last August, at the request of Maryland resident Chelsea Covington, Worcester County State’s Attorney Beau Oglesby reached out to the Maryland Attorney General’s Office for an opinion on the issue. Covington, an advocate for female bare-chestedness in public through the TopFreedom initiative, often goes topless in public places in Maryland including Ocean City and Assateague, for example.

Eight months later, the Maryland Attorney General’s Office is still reviewing Oglesby’s request, the relevant case law and likely an extensive brief presented by Covington.

“We have been working closely with Worcester County State’s Attorney Beau Oglesby and we continue to anxiously wait for an opinion from the Maryland Attorney General’s Office on how to handle this matter,” said OCPD Public Information Office Lindsay Richard this week. “As we wait for an opinion from the Maryland Attorney General, we have been closely examining the legal alternatives. We have discussed at great length how to honor the rights of all of the millions of visitors who come to Ocean City.”

In his request for an opinion from Frosh last August, Oglesby said he was deferring to the Maryland Attorney General’s Office after conferring with the OCPD and town officials.

“Mrs. Covington reached out to the Ocean City Police Department as well as this office,” Oglesby said when he requested the opinion last August. “She wanted to know if her anticipated behavior would be considered criminal. What is interesting about this is Worcester County becomes part of the focus because we have beaches. There are obvious ramifications for the Town of Ocean City. Again, there is no case law in Maryland directly on point. Everyone who participated in the discussion has the best interest of the town at heart. Equal protection prohibits treating men and women differently.”

A look at state laws governing women’s rights to go topless in public places appears to be a patchwork of varying degrees of legality. In just three states, Indiana, Tennessee and Utah, is female toplessness completely illegal. In the vast majority of the states, there is some degree of topless freedom, however, local ordinances in many cases supersede state law. In several other states, including Maryland and Delaware, the laws are considered ambiguous and in need of clarification.

For her part, Covington has certainly done her homework on the issue. In an extensive 28-page brief she prepared and presented to the Maryland Attorney General’s Office last August, a brief she has since updated just last week, Covington carefully outlines the existing language covering indecent exposure in Maryland, which is somewhat ambiguous, state laws in neighboring states, extensive case law and opinions from high courts across the country and even specific cases in neighboring jurisdictions where gender equality has superseded any pre-conceived notions of societal norms. After reviewing the case law and the existing statutes in Maryland, Covington has concluded in her extensive brief the opinion should be clear.

“Article 46 of the Maryland Constitution guarantees equality under the law regardless of sex and the Court of Appeals, the highest court in the state, has repeatedly upheld an absolute prohibition against gender-based discrimination,” the brief reads. “As male bare-chestedness has been legal in Maryland since the 1930s, female bare-chestedness is a legal behavior.”

Borrowing extensively from English common law, the statutes in most states, including Maryland, attempt to define indecent exposure in terms of what body parts should be considered “illegal” when exposed. The Maryland statute on indecent exposure defines it as a common law crime covering the deliberate exposure of one’s private parts, but does not specifically mention female breasts.

“The common law crime of indecent exposure refers to the deliberate exposure of one’s private parts,” the section of the code regarding indecent exposure reads. “This can occur in two ways, in a public place with members of the public present, or deliberately to an unconsenting victim, as in what is commonly called a ‘flasher.’ In order for probable cause to be found for indecent exposure in a public place, there should be same factual indication that members of the public were within sight of the act. In order for probable cause to be found for indecent exposure to a named victim, the facts must indicate a deliberate act of exposure done with the intent that an unconsenting victim would see.”

For Covington, taking her shirt off while sunbathing on a beach or walking through a park topless in the same areas where men are allowed to do so is only fair under the state’s gender equality mandates. In her brief, she has pointed out law enforcement can, and has, used other statutes regarding disturbing the peace or creating a nuisance to enforce the female bare-chestedness issue, but continued to call into question the legality of those options.

“Anticipating the argument that a police officer may still charge a bare-chested woman with the catch-all charges of disorderly conduct, public indecency or open lewdness, merely being a female is neither disorderly, indecent or lewd, any more than being a male is,” the brief reads. “Since police do not consider mere bare-chestedness disorderly, indecent or lewd in a male, it cannot be considered so in a female.”

For her part, Covington has said she merely wants the right to go topless in the same public areas where men currently have the right and there is no intent to create a scene or otherwise disturb the peace or security of others.

“Disorderly conduct traditionally consists of such actions at using vulgar and obscene language, vagrancy, loitering, playing loud music or creating excessive noise, or purposely causing a crowd to gather in a public place in such a way that it impedes traffic or creates a security hazard,” her brief reads. “Bare-chested sunbathing or walking through a park involves none of those things.”

While the Maryland commissioners’ manual indicates the deliberate exposure of one’s private parts is considered the crime of indecent exposure, it does not include any definitions of what are considered “private parts.” Many likely consider female breasts as private parts that should be covered in public, but there does appear to a double standard in terms of gender equality.

Covington certainly believes so and is part of a growing campaign to increase awareness and eliminate the double standard under the Equal Protection Act. In her blog Breasts Are Healthy, Covington relates stories of her efforts in other states. In one blog entry, she reports on sunbathing topless in Ocean City on a crowded summer beach and the relative apathy with which the public reacted. In her lengthy brief submitted to the Maryland Attorney General’s Office, she points out it boils down to the simple issue of gender equality.

“Absent any legal language or precedent defining the female breast as indecent, and with the strong guarantees of gender equality that exist in Maryland, it is inappropriate for police to enforce societal prejudices about what is ‘proper’ attire or behavior for females when they do not enforce the same standard for males,” the brief reads. “Law enforcement enforces law, not societal norm. We are allowed the freedoms in the United States and Maryland to challenge those norms through our expression and speech.”

About The Author: Shawn Soper

Alternative Text

Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.