OCEAN CITY — While the civil suit challenging Ocean City’s topless ordinance moves through the court system, the plaintiffs in the case late last week filed a motion seeking a preliminary injunction allowing women to immediately go bare-chested in the same public areas where men can.
A little over a year ago, the Ocean City Mayor and Council passed an emergency ordinance prohibiting women from going topless in certain public areas including the beach and Boardwalk where men are allowed to go shirtless. The ordinance was passed in response to a request from Chelsea Eline to the Town of Ocean City, 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 certain public areas.
Last week, with the suit filed in U.S. District Court plodding through the court system and the calendar flipping to July, the attorney for the named plaintiffs filed a motion seeking a preliminary injunction which, if granted, would enjoin the town from enforcing the topless ordinance.
Noted civil rights attorney Devon Jacob, who represents Eline and the other named plaintiffs, filed the motion for a preliminary injunction on Friday. Jacob said he asked the town to consider not enforcing the topless ordinance voluntarily until a decision is reached in the federal case but the request was denied.
“I asked the town of Ocean City to simply agree not to enforce emergency ordinance 2017-10 until after the lawsuit is decided, but Ocean City declined,” he said. “The taxpayers of Ocean City should be embarrassed and angry that their elected officials continue to waste public funds defending an unlawful ordinance that seeks to relegate women to the status of mere sexual objects.”
Jacob said he is confident the plaintiffs will prevail in the case and the town is spending a lot of money defending the topless ordinance, money that could be better spent on other issues.
“Frankly, it is disgusting,” he said. “The public funds being wasted on trying to shield citizens from seeing a couple of naked female breasts from time to time could instead be used to make Ocean City truly family-friendly. That money could be used to fight crime, feed the homeless, fight drug addiction and care for children and the elderly.”
Eline is an advocate for female bare-chestedness in public through the Top Freedom initiative and often goes topless in public areas 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 town and the Ocean City Police Department (OCPD) then sought the opinion of the Worcester County State’s Attorney’s Office.
In turn, the Worcester County 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. For several months, Eline and her advocates, along with the town of Ocean City and the Worcester County State’s Attorney’s Office, eagerly awaited the Attorney General’s opinion.
Last June, with the Attorney General’s Office still pending, and 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, the Mayor and Council passed an ordinance prohibiting the practice. The ordinance was passed as emergency legislation, making it effective immediately.
From the beginning, Ocean City officials have claimed a desire to be respectful of the rights of all residents and visitors to the resort and the passage of the emergency ordinance last June merely protects the town’s image as a family resort. However, the complaint filed in January dismisses the 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.
The town’s ordinance passed last June, an ordinance now challenged in U.S. District Court, 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.”
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. “Each year, thousands of families visit our beach to relax in an atmosphere free of this type of activity. We respect their rights.”
The suit filed in January includes a detailed history of the bare-chested issue beginning with the early efforts to allow men to go shirtless in public areas which dates back to the 1930s. It also cites significant case law from efforts to afford females the same rights from jurisdictions all over the country. The motion for a preliminary injunction filed last week attempts to point out the town’s assertion allowing female toplessness could hurt the town’s family image resulting in economic losses ring hollow.
“Any claim that Ocean City might suffer financially if women are treated equally to men is not based in reality,” the motion 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 Fourteenth Amendment.”
The motion also asserts the town’s emergency ordinance passed last June steps outside the boundaries of normal municipal government function.
“Contrary to its stated intention, the emergency ordinance does not seek to achieve an important government interest or respond to an actual emergency,” the motion reads. “Rather, the emergency ordinance is an unlawful attempt to codify longstanding sexist ideology and to ‘legally’ establish that women first and foremost are sexual objects who are inferior to men.”
Again, the motion for a preliminary injunction filed last week asserts the town would be better suited to focus its attention and financial resources on other issues in the resort.
“To the extent that Ocean City is concerned about public safety or economic downturn, the emergency ordinance is not narrowly tailored to achieve such purposes,” the motion reads. “The more-tailored approach to protect public safety or prevent economic downturn would be to enforce existing criminal laws that ban unlawful drugs, prostitution, disorderly conduct and assault. As such, the plaintiffs will likely succeed on the merits.”
The motion asserts the plaintiffs in the case will continue to exercise their perceived right to go topless in Ocean City’s public areas.
“The plaintiffs have frequented Ocean City and intend to continue to do so in the immediate future,” the motion reads. “While in Ocean City, the plaintiffs intend, at times, to be bare-chested in public in the same locations where it is lawful for men to be bare-chested for purposes other than breastfeeding.”
The motion outlines some of the potential penalties the plaintiffs face if they choose to go topless in Ocean City if the preliminary injunction halting the enforcement of the emergency ordinance is not successful.
“If not enjoined from doing so, Ocean City will cause the plaintiffs to be cited and fined $1,000 each time they appear bare-chested,” the motion reads. “Furthermore, if the plaintiffs continue to exercise their constitutional right, if not enjoined from doing so, Ocean City will cause the plaintiffs to be physically arrested and/or incarcerated. The only way to avoid the $1,000 fine, physical arrest or incarceration is for the plaintiffs to adhere to the government’s denial of their constitutional right.”
