Ocean City, Maryland renews "free the nipple" fight

(Ioanna Raptis/Portsmouth Herald seacoastonline.com via AP)

Back in 2017, five women from Ocean City, Maryland filed a lawsuit against the city arguing that a rule prohibiting topless bathing on the beach by women was unconstitutional because men were allowed to do so. The City Council immediately passed an emergency resolution in support of the ban, saying that topless bathing would hamper their efforts in “preserving and protecting the character of Ocean City and the moral sensibilities of its residents and visitors.” The women went to court and last April Judge James Bredar ruled that the ordinance was constitutional. The plaintiffs appealed the ruling and now the matter is in front of a federal appeals court. (CBS Baltimore)

The fight for women to go topless in Maryland’s most popular beach town is back in court.

A federal appeals court has heard arguments from advocates who want to overturn Ocean City’s ordinance that bans women from going topless.

A ruling was made last year to uphold the 2017 law that made nudity a municipal infraction punishable by a $1,000 fine.

It seems to me that the federal court has a lot of work in front of it if it wants to uphold the lower court’s ruling. As I mentioned at the time, Judge Bredar really went through some verbal gymnastics in his original ruling in an effort to make this ordinance appear constitutional. At the time, he wrote, “Whether or not society should differentiate between male and female breasts is a separate inquiry from whether it is constitutional to do so.”

In addition to that, the judge said, “physical differences between men and women provide a constitutionally sound basis for laws that treat men and women differently.” That was certainly true in the past, including how military recruitment and combat assignments were handled, but there are clearly limits as to just how differently you can treat men and women under the law. And even those limits have been tested, if not broken with relatively recent policy changes allowing women to serve in combat roles.

Still, those were extreme examples compared to the current question. This ordinance covers nothing beyond how people dress in public and it’s based on moral judgments, not the physical limits of the two genders when facing physical hardships. We still keep laws on the books regarding pornography or having sex in public (and even those have been questioned), but we’re talking about people swimming and walking on the beach or just sitting on a blanket. If you’re going to make the argument that such activities are pornographic then there are a lot of statues in all the major museums that are going to need to come down.

I’ll be the first to admit, growing up in the generation that I did, that women covering their breasts in public while men didn’t have to was something we always just took for granted. But if we’re being honest, that’s always been a double standard. In his original ruling, Judge Bredar mentioned exceptions for “areas of the body traditionally viewed as erogenous zones,” specifically stating that the term applied to female breasts but not male breasts. But even that isn’t true. I could cite any number of times when acquaintances on social media have posted pictures of athletic male actors and athletes posing without their shirts on drawing the obvious appreciation of plenty of women. (And according to most statistics, at least 8% or so of the men.)

How is the federal appeals court going to draw that sort of a distinction with a straight face? This question is even more pertinent in 2021 when we’re deep into the whole transgender revolution or whatever it’s being called these days. You’re not even supposed to suggest that there are two different genders. Didn’t anybody give that memo to the courts? If those five women show up at the beach next week topless and tell the cops that they “identify” as men now, I’d almost pay for tickets to watch that battle play out in court. I’ll just leave it at that and close here before I start sounding like a total boob.