There’s a famous Seinfeld episode where Elaine runs into an old frenemy named Sue Ellen Mischke, notable for her tall stature and enormous boobs, which she dares not to ever strap in with a bra. As a gesture that heavily hints at Sue Ellen to rein in those puppies, Elaine gifts her a bra, which Sue Ellen then proudly wears as a top — in public. “A woman walking around in broad daylight with nothing but a bra on?” Elaine declares during a pearl-clutching session at Jerry’s apartment after seeing the new fashion statement. “She’s a menace to society!”
It’s supposed to be funny, and there’s a subsequent plot where Kramer spots Sue Ellen bounding down the street, and is so distracted by The Bra that he plows into a telephone pole, later using that distraction as a successful legal argument. But change the words “with nothing but a bra on” to “topless,” and Elaine’s comment is literally one of the actual, real-life recurring legal arguments that cities across the country have been using to uphold topless bans that forbid nipple exposure for women only. Basically, that seeing women bare-breasted will send the unwitting public into a frenzy and cause them to crash into telephone poles and harm their fellow citizens and children.
“That’s one of the arguments [the city of Fort Collins, Colorado] raised, and it’s absolutely ridiculous: ‘What if a woman is walking down the street topless and someone crashes?’” explains Andy McNulty, an attorney at Killmer, Lane & Newman in Denver, who backed #FreetheNipple activists in a case against the city.
McNulty was one of the attorneys on the team, along with firm partner David Lane, who successfully won a case by a 2-1 margin in February in the federal 10th Circuit Court of Appeals, which ruled that banning women from going topless is unconstitutional because it’s discriminatory based on gender.
Killmer, Lane & Newman represented two #FreetheNipple activists, plaintiffs Brit Hoagland and Samantha Six, who had first lobbied Fort Collins directly to remove the phrase “the breast or breasts of a female” from its public indecency ordinance all the way back in 2015. Such ordinances, sometimes called nudity laws, generally forbid the exposure of male and female genitals, buttocks and pubic areas, but only the chests and nipples of women. The city refused to comply with their request, but begrudgingly tweaked the wording so that girls 10 and under and breastfeeding mothers would be exempt from the public indecency charge.
That, however, wasn’t enough to address what Six and Hoagland wanted: That women of any age can go topless just as men have been legally able to since the 1930s (which coincidentally, was a much easier law to change). “They’re of the belief, and it’s a correct one, that any statute that has the words, ‘Women are prohibited from…’ as part of it is per se unconstitutional,” Lane says. “I can’t think of any law that should be on the books that women are prohibited from, if men aren’t prohibited from. That’s how we ended up in federal court.”
The Fort Collins victory is notable for a few reasons. It’s a federal win, with a decision that now binds the 10th Circuit jurisdiction, which includes the states of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. It’s also a rare win for an issue that’s moved through courts all over the country at city, state and federal levels, all hinging on more or less the same ideological arguments, with mixed success.
Take New Hampshire’s recent upheld topless ban case, which involved three women who were all arrested for showing their breasts, one for doing yoga at a lakeside beach, sans top, and two other women who, out of solidarity, went to the same beach the next day to sunbathe topless, and were subsequently arrested. They all lost in lower courts, and recently took the case to the New Hampshire State Supreme Court. They lost there, too, and intend to ask the Supreme Court to hear the case in October.
The New Hampshire women’s argument, outlined in the amicus brief filed by the state’s ACLU, makes a similar case that Lane and McNulty did: Defining male chest nudity as different than female chest nudity and only criminalizing one in effect criminalizes being a woman, and is therefore discriminatory. Their state constitution’s own Equal Rights Amendment (which Colorado also has) demands that equality can’t be denied based on race, creed, color, sex or national origin.
In order for the state to discriminate anyway, they must pass a scrutiny test — i.e., provide compelling evidence that it’s in the state’s best interest to continue denying equality. The arguments go like this: Freely bared female nipples will cause public disruption that harms children, anyone of decent moral values and also traffic. “There’s a lot of case law from years ago saying no to this,” Lane explains. “‘Think of the children! What if children knew women’s breasts had nipples? What about the family-friendly atmosphere here in Fort Collins? We’re going to be a hotbed of wild, uncaged nipples.’”
And how do they defend that female nipples are innately more sexual than men’s? After all, you can’t argue that plenty of women and men don’t find men’s chests and bare nipples just as titillating. Basically: Nature.
New Hampshire did so, using other precedent in its favor to back it up. As the case text reads: “It is true that [the ordinance] requires the draping of more parts of the female body than of the male, but only because there are more parts of the female body intimately associated with the procreative function. The fact that the ordinance takes account of this fact does not render it discriminatory. Nature, not the legislative body, created the distinction between that portion of a woman’s body and that of a man’s torso.”
“New Hampshire isn’t the only one to cage the nipples either,” Lane explains. “The 7th Circuit has caged the nipples, too. So has the 8th Circuit.”
Why then did the 10th Circuit agree that it’s unconstitutional and discriminatory to forbid women from taking their shirts off in public, when so many other courts have maintained that letting women go topless will obliterate good society as we know it? It’s a matter of the judges, the strength of the legal case, the sociopolitical climate and myriad other factors. “[Our judges] agreed the sexualization of the female breast is cultural,” Lane says. “When it comes down to the physiology, nipples are nipples.”
Lane and company’s arguments also leaned heavily on research that shows that for women to be viewed this way — as innately sexual, whether they mean to be sexual or not — is harmful. “One of the main reasons we won is that we had an expert testify, the head of psychology at Colorado College [Tomi-Ann Roberts],” McNulty explains. “She’s done a lot of groundbreaking research on the harms to women due to the sexualization of their bodies. And also how viewing women’s bodies as sexual is societally born, not a biologically born thing.”
In effect, Roberts showed the judges that their belief that women’s breasts are innately sexual is res ipse dixit. “In other words, ‘A woman’s breast is sexual because I say it’s sexual; there’s no other basis,’” McNulty explains. “Through history and case law, that’s how it’s been. In most of the cases, they say, we don’t need scientific testimony because know women’s breasts are sexual objects. Because we just know.”
In particular, McNulty adds that they drew on research showing how women who have been subjected to sexualized gawking from men perform more poorly on tests. They have a harder time getting into a flow state because being treated as sexual makes them more self-conscious about their bodies, their appearance and their existence. And that violence toward women increases alongside their sexual objectification.
But he wants to make clear that this victory wasn’t “some legal wizardry.” “The case law is evolving in such a way that we’re realizing more and more that puritanical values aren’t necessarily a basis for criminalizing women’s actions and choices,” McNulty explains. “That’s the way it’s developed since the 1970s. It’s been a long road for women’s rights in this country. It started with just recognizing the equal right to hold a job, the equal right to serve on a jury. It’s been a long steady process of chipping away at these sexist, outdated notions of what women are, what their bodies are and what they’re capable of. This was years of activism from women across the country, and specifically our clients, who stood up for their rights. That’s what’s changed the law.”
As for the societal menace inevitable with a hotbed of wild, uncaged nipples, now that Fort Collins and Colorado at large has set them free?
McNulty lives in Denver, where the city just held its annual GoTopless Parade, a topless march that continues to raise awareness around the issue of equality for women. “I haven’t seen a single topless woman outside of GoTopless Day,” McNulty says. “Nor have we been engulfed in the pits of hell. And I personally haven’t been turned into a pillar of salt.”