Absent Formal Attorney General Opinion, New Topless Women Policy In Place On Ocean City Beach

Photo by Chris Parypa

OCEAN CITY — With still no formal opinion from the Maryland Attorney General’s Office on the legality of women going topless in the same area as men are allowed to go shirtless, the Ocean City Beach Patrol (OCBP) this week issued a directive to turn a blind eye, so to speak, on the issue.

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 (MAGO) seeking an opinion on the legality of women going topless in the same areas where men are allowed to go shirtless under the Equal Protection Act. It’s an opinion that could have serious repercussions in the resort area. 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.

Roughly 10 months later, the MAGO has not handed down a formal opinion on the issue, nor ostensibly any directives for law enforcement agencies on how to handle the issue in the interim. Absent a clear-cut directive from the Attorney General’s Office, the Ocean City Beach Patrol (OCBP) and the Ocean City Police Department (OCPD) are handling the female topless issue with kid gloves, careful to respect the rights of all involved including those females who choose to go topless and the countless visitors and residents who might be offended.

Just last weekend, three women were reportedly casually sunbathing topless on the beach at 11th Street. On Tuesday, OCBP Captain Butch Arbin said the beach patrol had not received any formal opinion from the MAGO, but was working under the assumption Maryland’s laws on the issue were rather nebulous and difficult to enforce.

“The bottom line is that according to the attorney general, there is no enforceable law on the books that prohibits topless females,” he said. “Personally, I don’t think it is good for Ocean City or the families that wish to visit an All-American city, but we only enforce the laws and ordinances. Therefore, our staff has been give specific direction on this issue.”

That specific directive was carefully spelled out in a policy statement issued by Arbin to his OCBP staff on Tuesday. Essentially, the policy statement, dated retroactively to May 20, states the Beach Patrol will carefully document complaints of female bare-chestedness on the beach, but will not approach women who exercise their apparent rights to go topless.

“Until we get specific guidance from the State’s Attorney, the City Solicitor and the Mayor and Council, we will handle complaints about women going topless on our beaches in the following manner,” the policy statement reads. “We will document the complaint on a minor incident form with information and particulars about the situation and the complainant’s information. We will not approach the topless woman, even if requested to do so by the complainant or other beach patrons.”

Of course, simply sunbathing topless might not be illegal under current Maryland law, but if a scene is created or an incident escalates, it could fall under other ordinances such as disturbing the peace or disorderly conduct, for example. Naturally, exposing ones genitals, for example, would not be a protected freedom in any case. The OCBP policy statement issued on Tuesday asserts laws already on the books will continue to be enforced.

“Violations of any other ordinance or law will be enforced as our policy and procedure dictates,” the policy statement reads. “In addition, exposing genitals for either a male or a female is clearly considered indecent exposure and is a violation of state law. In such a case, we are to request of the violator that they cover those areas, and if necessary, we will request assistance from the Ocean City Police Department.”

The OCBP policy statement also outlines the procedures if a situation involving a topless female escalates.

“If the complaint results in a confrontation between the parties, we will intervene to ensure it does not escalate and request an area supervisor,” the policy statement reads. “If at any time the situation appears to become physical, we will request police assistance. If at any time the complainant requests an Ocean City Police Department response, then we will make that request on their behalf through Ocean City Communications.”

Arbin said he did not anticipate any major problems from the issue while awaiting a formal opinion from the Attorney General’s Office. He said in his four decades-plus on the patrol, there have only been a few instances and they were typically handled rather easily.

“For the past 44 years, I have simply asked a woman who was topless to cover up,” he said. “This has never been an issue and in 99 percent of the cases, it was a foreign visitor who just didn’t know and was happy to comply.”

For her part, Covington said this week while there was still no formal opinion from the state, the beach patrol’s proactive approach represented a refreshing turn of events in the ongoing debate.

“I am quite pleased to hear the Ocean City Beach Patrol is training its staff to treat women and men equally,” she said. “I trust the Ocean City Police Department will follow the same guidance and join the many states and municipalities around the country that already recognize female bare-chestedness to be a legal and healthy act.”

Meanwhile, the OCPD also has not received any formal directive from the OAG and will continue its stated policy of being cognizant of rights of all involved, with the emphasis on “all.” Two weeks ago, OCPD Public Information Officer Lindsay Richard said the department was exploring all of the enforcement alternatives while it awaited a formal directive and that policy has not changed.

“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 Richard. “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.”

Covington said the apparent thaw signaled a baby step in acceptance of female bare-chestedness and urged all involved to keep an open mind going forward.

“In light of this new normal, I ask people to consider their feelings on equality, body positivity, shaming and the hyper-sexualization of the American female body,” she said. “Female breasts are normal and healthy. I look forward to a future in which all Americans are treated equally under the law, not just in this regard but in all regards.”

She said she also hoped the OCPD and law enforcement agencies across the state would not adopt a policy of harassment for those who choose to exercise their new-found freedom.

“I also ask the Ocean City Police Department to train is officers that female bare-chestedness is not a crime, but harassment is,” she said. “Some people may consider a bare-chested female to be somehow exempt from harassment laws. It is illegal and wrong to harass someone, regardless of attire.”

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 a 28-page brief she prepared and presented to the Maryland Attorney General’s Office last August, 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.

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.” Of course, 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.

About The Author: Shawn Soper

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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.