Opinion Confirms Ocean City Likely Within Right To Ban Female Toplessness

OCEAN CITY — Less than a week after the Town of Ocean City passed an emergency ordinance prohibiting women from going topless in the same area men are allowed to go shirtless, the Maryland Attorney General issued a long-awaited opinion essentially upholding the town’s position.

“You asked whether state or local indecent exposure laws may constitutionally be interpreted to allow men to appear bare-chested in public while simultaneously forbidding women to do the same,” the Maryland Attorney General’s Office’s letter of advice to Worcester County State’s Attorney Beau Oglesby released late Thursday reads. “It is our view that Maryland courts would hold that prohibiting women from exposing their breasts in public while allowing men to do so under the same circumstances does not violate the federal or state Constitution.”

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 seeking an opinion on the legality of women going topless in the same public areas where men are allowed to go shirtless. 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.

Last summer, Covington reached out to the Ocean City Police Department (OCPD) and the Worcester County State’s Attorney’s Office seeking an opinion on the issue. Oglesby, after consulting with the OCPD and Ocean City officials and after reviewing the existing statutes in Maryland, opined state law regarding female bare-chestedness was unclear and decided to seek an opinion from Maryland Attorney General Brian Frosh. On Thursday, Frosh’s office released a letter of advice penned by Chief Counsel Adam Snyder and Counsel to the General Assembly Sandra Brantley.

The Maryland Attorney General’s Office’s letter of advice issued on Thursday cites numerous examples of case law from similar opinion requests around the country. Perhaps the most poignant case law citing comes from United States v. Biocic in which the Fourth Circuit held that federal law prohibiting indecent exposure in national parks could be applied to topless women sunbathing, but not men, without violating equal protection.

“The important government interest is the widely recognized one of protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones,” the Fourth Circuit’s opinion from over two decades ago reads. “These still include, whether justifiably or not in the eyes of all, the female, but not the male, breast.”

While the general tenor of the letter of advice upholds the town’s position on the legality of female toplessness, it does leave open the possibility the opinions of the public at-large on the issue could change in the future. It also directs law enforcement to tread lightly and not overzealously enforce the state and local ordinances.

“While we conclude that the Court of Appeals would uphold the application of Maryland’s indecency laws against female toplessness, we also know that public morals are not static in this realm,” the letter of advice reads. “And when public sensibilities begin to change, they can change quickly. We also recognize that what is seen as indecent can depend on context. Law enforcement officials may consider that context when exercising their enforcement discretion and thus are best positioned to ensure that Maryland’s indecency laws are applied no more broadly than public sensibilities require.”

The timing of the letter of advice is curious because it comes just under a week after the Town of Ocean City passed its own local ordinance prohibiting female toplessness and it is uncertain if that action by the town expedited the OAG’s letter of advice.

Mayor Rick Meehan said Thursday he was pleased the Attorney General’s Office letter of advice essentially upheld the town’s position in its own ordinance passed last Friday.

“We are pleased to see the Attorney General’s Office has advised that prohibiting topless women sunbathing is not a violation of equal protection,” he said. “We have a responsibility to protect the rights of thousands of families who visit our beach and Boardwalk each summer season and the letter of advice agreed with our position.”

For his part, Oglesby said the letter of advice helps clear the air on the rather murky legal question.

“The Office of The Attorney General has provided me with a well-reasoned and comprehensive analysis of this legal question,” he said. “This issue has statewide implications and unfortunately has created division and unrest in our community during our busiest time of the year. Individuals on both sides hold passionate and sincere beliefs in their positions.  However, having reviewed and considered the advice letter, I agree with its conclusions. My office will continue to work with the Ocean City Police Department and the town of Ocean City as this issue develops further.”

Meanwhile, Covington on Thursday essentially blasted the Maryland Attorney General’s Office for taking 10 months to issue a two-page letter of advice that falls short of clarifying the issue.

“The document issued today by the Office of the Attorney General is pathetically non-committal,” she said.  “Ten months after agreeing to issue an opinion, they instead issue a two-page ‘advice letter’ citing Biocic, an obscure case from 1991 which I myself provided to them early in my brief specifically because of its strong language in support of gender equality and top freedom, completely avoiding any analysis whatsoever of the large body of recent and timely federal and state case law on this topic, and then concluding by basically shrugging and saying they could be wrong.”

Covington said the Attorney General’s Office letter of advice appears to have been hastily thrown together and promised to continue the equal rights battle.

“It reads like a book report written on the bus the morning it is due by a student who didn’t actually read the book,” she said. “Why accept the opinion request at all? Now we take the issue to court and see who wins and loses. We could have started this a year ago. The Attorney General stalled for a year, created unneccessary drama and contention between the parties, wrote a wildly incomplete analysis that clarifies nothing and will ultimately cost Ocean City a lot of money to defend an unconstitutional ordinance. Bravo.”

Full opinion here.

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.