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U.S. Court of Appeals hears case on topless sunbathing on Maryland's Ocean City beach

The case involves an emergency ordinance passed in 2017 that prohibited women from going topless on beaches while allowing men to go shirtless.

Updated: May 8, 2021 - 8:31am

The Facts Inside Our Reporter’s Notebook

A federal appeals court opened a case this week on an Ocean City, Maryland, emergency ordinance passed in 2017 that  prohibited women from going topless on beaches while men were still allowed to go shirtless in the same areas.

Five town residents then posed a legal challenge to the ban, arguing it was unconstitutional.

A civil suit filed in a U.S. District Court in 2018 was dismissed in April 2020 when the court ruled that city officials have a better understanding of the public's moral "sensibilities" than residents and visitors.

U.S. v. Biocic of 1989, in which the court found no right to public nudity, was a similar case that was used as a precedent for the court ruling. 

After the lower court's dismissal, the U.S. Court of Appeals for the 4th Circuit opened the case this week for review and oral arguments. 

"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," plaintiff attorney Devon Jacob said in opening arguments. "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 argued that protecting the public’s moral sensibilities "permits a sexist ideology to be cloaked in legitimacy in the same way that nationalism legitimizes racism."

He also told the court it's time for the Biocic case from three decades ago to be overturned, according to the Maryland Coast Dispatch.

Ocean City’s attorney, Bruce F. Bright, said the ordinance is "not a regulation of sexual choices or behavior."

"This is a regulation of public nudity and whether it should still be defined as exposure of the female breast," he also said.

The judge who upheld the ban last year said that it is the government's objective to protect the public from displays of areas traditionally considered erogenous zones, citing female but not male breasts.

Chief Judge Roger L. Gregory expressed skepticism during the Wednesday hearing about the town's rationale for the ban  and extent of public concerns over topless sunbathing.

He also asked how many calls town officials received complaining about the possibility of women baring their chests and pointed out the ordinance was passed after an inquiry to police about what would happen if women "expressed their freedom in this manner on the beach," The Washington Post reported.