OCEAN CITY — The other shoe dropped over the weekend when the Maryland woman who first challenged the legality of women going topless in the same areas where men are allowed to go shirtless retained a nationally known civil rights attorney to challenge Ocean City’s recently passed ordinance prohibiting the act.
On Thursday, the Maryland Attorney General’s Office issued a long-awaited opinion on the issue of females allowed to go topless in the same areas where men are allowed to go shirtless, essentially opining the emergency ordinance passed by the Mayor and Council on June 10 prohibiting women from going topless in public areas including the beach and Boardwalk, for example, was not unconstitutional. The Mayor and Council enacted the emergency ordinance while awaiting the Maryland Office of the Attorney General (OAG) opinion with the start of the summer season arriving and at least a handful of women exercising their perceived rights to go topless on the beach.
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.
Amid a backlash from concerned residents and visitors over the potential for Ocean City to allow women to go topless, a reaction only accelerated by an Ocean City Beach Patrol directive to staffers to carefully document complaints but not to approach women who exercise their perceived rights, the Mayor and Council passed the ordinance effective immediately after its adoption on June 10. Less than a week later, the Maryland Attorney General’s Office issued its letter of advice, basically upholding the constitutionality of the town’s emergency ordinance.
Almost immediately after the OAG’s letter of advice was handed down, Covington retained the services of noted civil rights attorney Devon Jacob, who vowed to pursue legal action against the town’s recently passed ordinance. It’s important to note Covington’s topless campaign would include all of Maryland, but it has become a uniquely Ocean City issue in recent weeks and Jacob alluded to a potential legal challenge of the town’s ordinance although it is uncertain at this point what that might look like and at what level it might be challenged.
“It is disheartening that a few small towns and cities still attempt to make ignorance the law,” said Jacob. “Ms. Covington and I intend to end discrimination against females in Ocean City. We will fight to make Ocean City a safe place for everyone to enjoy equally.”
Almost immediately after the OAG’s letter of advice was handed down last Thursday, Covington alluded to a possible legal challenge of the town’s ordinance. That other shoe dropped over the weekend when she retained Jacob.
“Now we take the issue to court and see who wins and loses,” Covington said on Thursday. “We could have started this a year ago. The Attorney General stalled for a year, created unneccesary 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.”
Jacob is a national civil rights attorney who has successfully litigated several civil rights cases. According to his bio, his primary practice is focused on police misconduct including false arrest, excessive force and malicious prosecution, for example.
In its letter of advice issued last Thursday, the OAG cited a decade’s old case from the Fourth Circuit that held 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 OAG’s 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,” Frosh’s 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.”
From the town’s perspective, Mayor Rick Meehan said after the council passed the emergency ordinance Ocean City remains sensitive to individual rights, but the collective rights of the countless visitors to the resort outweighed those individual rights on this specific issue.
“Ocean City has never been a topless beach,” he said. “Unfortunately, due to the recent inquiries made to the State’s Attorney’s Office, media reports and inaccurate information that have been circulated, we have received hundreds of calls and emails from residents and visitors expressing their concern over this issue. Each year, thousands of families visit our beach to relax in an atmosphere free of this type of activity. We respect their rights.”
The language in the ordinance carefully spells out the town’s position.
“There is no constitutional right for an individual to appear in public nude or in a state of nudity,” the ordinance reads. “It does not implicate either the First Amendment to the United States Constitution, the right to privacy, or a protected liberty interest. It lacks any communicated value that might call for First Amendment protection, nor does it implicate the right or privacy or the right to be alone. One does not have right to impose one’s lifestyle on others who have an equal right to be left alone.”