OCEAN CITY — While a challenge to Ocean City’s ordinance prohibiting female toplessness on the beach remains in federal court, the New Hampshire Supreme Court late last week upheld the arrest and conviction of three women for going bare-chested in a beach community in that state.
In June 2017, the Ocean City Mayor and Council passed an emergency ordinance prohibiting women from going topless in the same public areas such as the beach and Boardwalk. The ordinance was passed in response to a request from Chelsea Eline seeking clarification from the town, the Worcester County State’s Attorney and ultimately the Maryland Attorney General on the legality of female bare-chestedness.
In January 2018, Eline and four other named plaintiffs filed suit in U.S. District Court challenging Ocean City’s emergency ordinance and that case continues to plod on in federal court. In the meantime, challenges to similar ordinances continue to pop up in other areas around the country including New Hampshire.
Last Friday, the New Hampshire Supreme Court upheld the convictions of three women arrested and charged with indecent exposure in violation of a town of Laconia ordinance prohibiting female toplessness in a case similar to the one in Ocean City. In 2016, three women were arrested in Laconia after taking their tops off on a public beach and refusing to put them back on after 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.
Last Friday, the New Hampshire Supreme Court upheld the lower court’s conviction of the three defendants, opining the town of Laconia’s ordinance did not violate the women’s rights.
“We have found that the ordinance does not violate the defendants’ constitutional rights to equal protection or freedom of speech under the state and federal constitutions,” the majority opinion reads. “As such, it does not unduly restrict the defendants’ fundamental rights. Accordingly, we agree with the trial court that the city had the authority to enact the ordinance.”
The dissenting opinion concluded the city of Laconia’s ordinance was unconstitutional because it treats men and women differently. However, the majority opinion prevailed by a narrow 3-2 vote.
During oral testimony in the New Hampshire case a year ago, 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.”
After the New Hampshire Supreme Court ruling against his clients, Hynes issued a statement that hinted at seeking a remedy from the state’s lawmakers.
“We are extremely disappointed in the court’s ruling that treating women differently than men does not amount to sex discrimination,” said Hynes. “Since the New Hampshire constitution, which prohibits sex discrimination, was not enough to prevent this unequal and unfair treatment, we hare hopeful the New Hampshire legislature steps up to correct this injustice by outlawing Laconia’s ordinance.”