Court upholds ordinance prohibiting women, but not men, from being topless in public

The 8th Circuit Court of Appeals, in Free the Nipple v. City of Springfield, recently upheld a Missouri City’s indecent exposure ordinance that banned women, but not men, from being topless in public. The ordinance prohibited the exposure of “the female breast with less than a fully opaque covering of any part of the areola and nipple.” The ordinance did not have such a prohibition for males. An organization, called Free the Nipple (“FTN”), filed suit, claiming that the ordinance was unconstitutional and violated the Equal Protection Clause because it treated women and men differently by prohibiting women, but not men, from exposing their areolas and nipples in public. FTN argued that they had provided evidence suggesting there is no real difference between male and female nipples, and that gender stereotypes motivated the discriminatory treatment in the ordinance. FTN also complained about the lack of an exception for young children. The Court rejected FTN’s arguments, and, relying on an earlier decision upholding a nearly identical ordinance in Nebraska, held that the ban was constitutional. The Court determined that the ordinance was substantially related to the important governmental interest of “promoting public decency and proscribing public nudity to protect morals, public order, health, and safety.”