OCEAN CITY — While a challenge to Ocean City’s ordinance prohibiting women from going topless awaits a federal court ruling, the New Hampshire Supreme Court last week heard oral testimony on a similar case.
Last June, amid a backlash from concerned residents and visitors over the potential for Ocean City to allow women to go topless on its beaches and Boardwalk, for example, the Mayor and Council passed an emergency ordinance prohibiting the practice. The ordinance was passed in response to a request from local resident Chelsea Eline seeking clarification from the town, the Worcester County State’s Attorney’s Office and ultimately the Maryland Attorney General on the legality of female bare-chestedness in the same areas in which men can go shirtless. On Jan. 16, Eline and four other named plaintiffs, through noted civil rights attorney Devon Jacob, filed suit in U.S. District Court, challenging the emergency ordinance passed by the Mayor and Council last June. While that case is essentially in its infancy still, similar challenges to female topless rules continue to sprout up around the country.
Last Thursday, the New Hampshire Supreme Court heard arguments in a case from a beach town in that state that has some similarity to the Ocean City case and could have some bearing on its outcome. In 2016, three women were arrested in the New Hampshire town of Laconia after taking their tops off on a public beach and refusing to put them back on after some beachgoers complained.
Laconia’s law on indecent exposure bans nudity, but appears to single out females by prohibiting the “showing of female breasts with less than a fully opaque covering of any part of the nipple.” The District Court in New Hampshire refused to dismiss the case and the three arrested women appealed to the state’s Supreme Court. Oral arguments in the case were heard last Thursday although an opinion from the state’s high court has yet been issued. In arguing for the three women, defense attorney Daniel Hynes opined New Hampshire’s state laws do not forbid female toplessness and that his clients should have the same rights as men.
“The city of Laconia has criminalized being female,” he said. “That’s what this comes down to. I’m not aware of any criminal statute in New Hampshire where an element of the offense is that the state must prove the defendant is a certain sex. I suggest that it is unconstitutional and, really, immoral.”
Hynes’ counterpart, Assistant Attorney General Susan McGinnis argued the town’s ordinance merely attempts to avoid a public disturbance resulting from bare-breasted women on the beach and that the ordinance did not prohibit toplessness, but mere required women to cover their nipples.
McGinnis also argued there was no First Amendment element to the case because the arrested women were not blatantly protesting the town’s ordinance when they chose to go topless on the public beach. One of the women was reportedly doing yoga while the other two were simply sunbathing. In a rather flimsy argument, McGinnis asserted the mere presence of bare-chested women on the beach could trigger lawlessness.
“This is a matter of public safety and morals,” she said. “Incidents of sexual assault increase when women are topless. There’s a public safety element involved in order to protect women.”
The New Hampshire Supreme Court panel listened to testimony from both sides, but did not immediately render an opinion. Justice Robert Lynn, however, questioned the legitimacy of the women’s claims.
“What’s the disadvantage here?” he said. “Give me some plausible disadvantage that happens to women because of this.”
