OCEAN CITY — Opening arguments were heard in federal court this week in the appeal challenging Ocean City’s ordinance prohibiting female toplessness in public.
In January 2018, a civil suit was filed in U.S. District Court challenging an emergency ordinance passed by the Mayor and Council in June 2017 prohibiting females from going topless in the same areas as men are allowed to go shirtless, including the beach and Boardwalk, for example. The plaintiffs in the case, including local resident Chelsea Eline and four others, argued the emergency ordinance passed by the Mayor and Council violated their constitutional rights allowing them, and ostensibly any other women who wished to do so, to go topless in certain areas of the resort where men are allowed to go shirtless.
In April 2020, a U.S. District Court judge dismissed the case, essentially opining Ocean City officials have a better understanding of the public’s moral sensibilities of their residents and visitors regarding the issue of female toplessness. The U.S. District Court’s ruling in the case relied largely on the precedent-setting U.S. v. Biocic case heard by the Supreme Court three decades ago. In June 1989, a woman was cited and fined $25 for going topless on a beach in the Chincoteague National Wildlife Refuge in violation of the U.S. Fish and Wildlife regulations.
After the U.S. District Court dismissed the civil suit challenging Ocean City’s topless ordinance, the plaintiffs in the case quickly filed an appeal in the U.S. Court of Appeals for the Fourth Circuit last May. On Wednesday morning, almost a year to the day since the appeal was filed, oral arguments were heard in the case.
Attorney Devon Jacob, who represents Eline and the other plaintiffs, before Wednesday’s oral arguments were heard, explained the basis for the appeal.
“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,” he said. “This lawsuit seeks a declaration from the court that Ocean City’s ordinance violates the Equal Protection Clause of the 14th Amendment to the federal Constitution.”
Jacob said it was time for the Fourth Circuit to overrule Biocic, referring to the 1991 decision by the Fourth Circuit in United States v. Biocic which recognized protecting the public’s moral sensibilities as an important governmental interest and served as the basis for the U.S. District Court to uphold Ocean City’s 2017 ordinance prohibiting female toplessness in public places. Jacob argued, in practice, protecting the public’s moral sensibilities “permits a sexist ideology to be cloaked in legitimacy in the same way that nationalism legitimizes racism.”
At the outset of oral arguments in the appeal on Wednesday morning, Jacob reiterated that point before the three-judge panel.
“This ordinance is based on sexist ideology,” he said. “The fact that something makes somebody uncomfortable is not a reason to make a law. The public has consistently been demanding more and more equality under the law. Here, this government objective of public sensibility is an amorphous term that nobody seems to be able to define. When you look at Ocean City, basically, their argument is it would make people uncomfortable.”
At the U.S. District Court level, attorney Bruce Bright, representing Ocean City, argued the Mayor and Council have a better understanding of the moral sensibilities of its residents and visitors than the plaintiffs in the case, an argument that ultimately served as the basis for that court’s dismissal of the case. During oral arguments on the appeal on Wednesday, Bright relied on the same basic concept.
“The Mayor and Council are well known in the community,” he said. “Everywhere they go, people come up to them to address public issues. By nature of their positions as elected officials, their job is to take the temperature of the public on a whole host of issues. They evaluate what the public view is and they legislate on that basis. That’s what they did in this case.”
Bright outlined the timeline that led to the emergency legislation in 2017, including apparent public outcry when the female toplessness issue surfaced just prior to the summer season. Bright argued before the issue was raised by Eline in 2017, the Mayor and Council relied on public sentiment about the topless issue and addressing through an ordinance had not been necessary.
“Prior to then, the Mayor and Council did not see the need to specifically legislate on that issue because the sensibilities were what they were, and people conformed themselves to that,” he said. “Now, in the more modern era, someone came along saying they wanted to go topless on the beach in Ocean City and that necessitated addressing this issue legislatively.”