Back in 2017, Ocean City, Maryland passed an ordinance prohibiting women from going topless on the city’s beaches. The following year, five women went to court, challenging the constitutionality of the ban and declared that they planned to go topless on the beaches in protest. Several of them were arrested.

The court case has dragged on since then, but this week a federal judge ruled that the ban was constitutional. Boy oh boy… I can’t wait for John Roberts to sink his teeth into this titillating case. (Sorry. Not sorry.) But at least for now, any women who choose to defy the stay at home orders and go to the beach will need to cover up or face paying a fine. But as I’ll discuss below, the rationale offered by the judge raises more questions than it answers in the current national climate. (Baltimore Sun)

Ocean City can ban women from going topless in public, a federal judge ruled Tuesday.

Judge James Bredar noted in his ruling that the U.S. Supreme Court has consistently maintained that physical differences between men and women provide a constitutionally sound basis for laws that treat men and women differently.

Bredar also determined that protecting the public sensibilities from the public display of areas of the body traditionally viewed as erogenous zones, including female, but not male, breasts, is an important government objective.

In his ruling, Judge Bredar stated, “Whether or not society should differentiate between male and female breasts is a separate inquiry from whether it is constitutional to do so.” Really? It seems to me that the question of whether or not you can explicitly treat males and females differently as part of a law is actually at the heart of the question of constitutionality. And since when do “public sensibilities” play into such questions? Not that I wouldn’t be all in favor of the courts paying a bit more attention to tradition and long-standing views on what’s socially acceptable, but the courts have been pretty selective in when and how they recognize such beliefs.

There’s another major fly in Judge Bredar’s ointment. He stated that physical differences between men and women provide a constitutionally sound basis for laws that treat men and women differently. Okay, Judge. If that’s your view, what do you plan to do about transgender men (i.e. women) who haven’t had breast reduction surgery yet but show up at the beach topless? We’re being told by many of your judicial peers around the country that we must recognize those people as “men.” If they expose their breasts at the beach, can they be arrested? After all, the law specifically says that these rules only apply to women.

Here we see yet another case where the entire transgender debate could warp areas of law that don’t appear to even be related to those questions at first glance. This judge is now on record recognizing the right of the government to make legal distinctions between men and women. But how will the courts handle this question when they are simultaneously accepting (in some cases) the idea that “gender is just a social construct” and the meaning of words such as sex, gender, male and female is in dispute?

The world is being increasingly turned on its head these days, with many traditional beliefs and moral systems being undermined. Personally, I wouldn’t object to a ban on topless sunbathing for women if that’s what the majority of the people in the community supported. But we need to apply the rules fairly across the board. Don’t tell us that you can make special rules that only apply to women and then claim that we can’t even define what a “woman” is.