OCEAN CITY — The long-simmering issue of the legality of women going topless in the same areas where men are allowed bubbled to the surface this week with the filing of a federal suit challenging Ocean City’s ordinance prohibiting the practice last summer.
Last June, the Ocean City Mayor and Council passed an emergency ordinance prohibiting women from going topless in public areas like the beach and Boardwalk. The ordinance was passed in response to Chelsea Covington’s request from the town, the Worcester County State’s Attorney’s Office and the Maryland Attorney General’s Office for clarification of the existing state laws prohibiting female toplessness in public areas.
Covington, an advocate for female bare-chestedness in public through the Top Freedom initiative, often goes topless in public places in Maryland including Ocean City and Assateague, for example. In 2016, she sought an opinion from the Town of Ocean City and its police department on the legality of the practice. The issue was forwarded to the Worcester County State’s Attorney’s Office for guidance.
In turn, the State’s Attorney’s Office, uncertain of the interpretation of Maryland’s indecency statutes, sought the opinion of the state’s Attorney General on the issue.
With the Attorney General’s Office pending for months, and amid a backlash from concerned residents and visitors over the potential for Ocean City to allow women to go topless on its beach and Boardwalk, the Mayor and Council passed an emergency ordinance prohibiting the practice immediately.
Shortly after the ordinance was passed, Covington retained the services of noted civil rights attorney Devon M. Jacob to prepare a challenge to the town’s hastily-passed ordinance. For the last seven months, Jacob and his legal team have been preparing a lawsuit to challenge the town’s ordinance on female bare-chestedness.
Late Tuesday, the formal complaint was filed in U.S. District Court. The suit lists Covington, referred to in the formal document as Chelsea Eline, along with four other women as plaintiffs. The complaint lists as defendants the town of Ocean City, Mayor Rick Meehan, Emergency Services Director Joe Theobald, whose department oversees the Ocean City Beach Patrol, and Ocean City Police Department (OCPD Chief Ross Buzzuro as defendants.
“I am excited to have our lawsuit against Ocean Citys’ unconstitutional ordinance filed in federal court,” Covington, now known as Eline, said. “Our team has made a considered, thoroughly researched and thoughtful argument for gender equality. We look forward to the day when there is one set of rules for all, without exception, and when entrenched stereotypes are a thing of the past.”
The complaint filed on Tuesday includes a detailed history of the bare-chested issue beginning with the early efforts to allow men to go shirtless in public areas dating to the 1930s. It also cites significant case law from efforts to afford females the same rights from jurisdictions all over the country.
“This lawsuit is about confirming the legal right of women to be bare-chested in public in the same places that men are permitted to be bare-chested, for purposes other than breastfeeding,” the complaint reads. “This lawsuit seeks a declaration from the federal court that the town of Ocean City’s emergency ordinance violates the Equal Protection Clause of the 14th Amendment to the federal Constitution because the gender classification does not further an important government interest, but rather codifies longstanding and sexist ideology in which women are viewed as inherently sexual objects without the agency to decide when they are sexual and when they are not.”
From the beginning, Ocean City officials have claimed a desire to be respectful of the rights of all residents and visitors and the passage of the emergency ordinance last June merely protects the town’s image as a family resort. However, the complaint filed on Tuesday dismisses any perceived loss in tourism numbers and the associated economic gains for the town as a reason for which to violate individual protections under the 14th Amendment.
“Any claim that Ocean City might suffer financially if women are treated equally to men is not based in reality,” the complaint reads. “Many other thriving tourist destinations, resorts and cities in the United States allow women to go bare-chested. Regardless, financial losses, real or perceived, do not justify violating the Equal Protection Clause of the 14th Amendment.”
The complaint seeks a preliminary and ultimately permanent injunction prohibiting the town from enforcing its topless ordinance passed last June. It also seeks attorney fees and costs along with any discretionary damages and relief for the named plaintiffs.
“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.”
After retaining Jacob’s services last summer after the town passed its emergency ordinance, Eline predicted a protracted legal battle over the issue. With the complaint filed on Tuesday, that battle will now begin in earnest.
“Now we take the issue to court and see who wins and loses,” Eline said at the time. “We could have started this a year ago. The Attorney General stalled for a year, created unnecessary 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.”
The town’s ordinance carefully spells out the town’s position on the issue.
“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.”
The ordinance states protecting the public’s collective interest supersedes individual interests in this case.
“Protecting the public sensibilities is an important governmental interest based on the indisputable difference between the sexes,” the ordinance reads. “Further, a prohibition against females baring their breasts in public, although not offensive to everyone, is still seen by society as unpalatable.”
After the town’s ordinance was passed last June, Mayor Rick Meehan said 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 has 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.”
From the beginning, advocates for female bare-chestedness have opined the same standard should be applied for men and women, but the town’s ordinance runs counter to that.
“The equal protection clause does not demand that things that are different in fact be treated the same in law, nor that a government pretend there are no physiological differences between men and women,” the ordinance reads.
The ordinance spells out the prohibition on female toplessness and prescribes the potential fines.
“It shall be unlawful for any person to be on the beach, Boardwalk, public parks, parking lots, streets, avenues, alleys or any other public place with the person’s specified anatomical areas nude or in a state of nudity,” the ordinance reads. “Any person who is found to be in any violation of this article shall be deemed to be guilty of a municipal infraction and be subject to a fine of up to $1,000.”