Maryland’s top lawyer on Thursday waded into the controversy over topless sunbathing at the beach, telling state and local officials that they probably are on solid legal ground if they want to ban women from baring their breasts in public.
The office of Maryland Attorney General Brian E. Frosh (D) said that “prohibiting women from exposing their breast in public while allowing men to do so under the same circumstances does not violate the federal or state Constitution.”
The brief opinion comes less than a week after the Ocean City Council held an emergency meeting to pass a public nudity ban. The family-friendly beach has never been a destination for topless sunbathing. But the popular vacation spot was thrust into a debate about gender equity after a local female resident lobbied officials to go shirtless.
Chelsea Covington, a self-described “topfreedom” advocate, had argued for “equality under the law” in a legal brief submitted to state and city officials that said if men can go bare-chested in public, women can, too. She argued that allowing women to be bare-breasted in public is not indecent or lewd.
Covington called the letter from Frosh’s office “pathetically noncommittal” and said it read like “a book report written on the bus the morning it is due by a student who didn’t actually read the book.” She said plans to continue her battle in court.
“The Attorney General stalled for a year, created unnecessary drama and contention between the parties, wrote a wildly incomplete analysis that clarifies nothing and will ultimately cost Ocean City a lot of money to defend an unconstitutional ordinance,” Covington said in a statement. “Bravo.”
Last August, Worcester County State’s Attorney Beau Oglesby asked the attorney general’s office for guidance on the state’s indecent-exposure laws and how the rules would apply to women who want to go topless in public.
Ocean City officials said they were “delighted” by the legal advice from the attorney general’s office, which will have statewide implications.
“We have a responsibility to protect the rights of thousands of families who visit our beach and boardwalk each summer season, and the letter of advice agreed with our position,” Mayor Rick Meehan said.
Maryland law is not entirely clear on whether women are expressly prohibited from bearing their breasts in public, saying only that “a person convicted of indecent exposure is guilty of a misdemeanor and is subject to imprisonment not exceeding 3 years or a fine not exceeding $1,000 or both.”
No Maryland appellate court has addressed the specific issue of toplessness. State and local indecent-exposure laws do not apply to breast-feeding women, who have a right to do so in public.
While Ocean City officials waited for word from the attorney general’s office this month, they directed the beach patrol not to confront bare-chested women or ask them to cover up. Beach patrol employees were told to document complaints about topless bathers by filling out “minor incident” forms, but were specifically told not to “approach the topless woman, even if requested to do so by the complainant or other beach patrons.”
In response to public concern, however, Ocean City officials took action last Saturday to make clear the local beach was not going topless. In the emergency meeting, the council approved an ordinance that makes public nudity a municipal infraction punishable by a fine of $1,000 and again enforceable by the local beach patrol.
The legal opinion, written by Sandra Benson Brantley and Adam D. Snyder, says a clear majority of cases from other jurisdictions — including from the Richmond-based U.S. Court of Appeals for the 4th Circuit — have upheld the constitutionality of regulations that prohibit women, but not men, from being topless in public. The memo also quotes from a Maryland Court of Appeals decision that says it is not a violation of equal rights laws to treat men and women differently “on account of physical characteristics unique to one sex.”
“Things which are different in fact” don’t necessarily need “to be treated in law as though they were the same,” the letter said.
Covington said the letter relied on an obscure case and ignored recent case law that supported gender equality and “topfreedom.”
“Drawing a meaningful gender line between male and female regarding breast tissue is difficult if not impossible,” Covington wrote in her original brief, “and attempting to enforce such a law will result in illegal arrests and harassment charges against police, as well as cement the societal stigma of being born into a female body.”
The attorney general’s brief cited a federal judge’s opinion that said breasts are considered “erogenous zones” to some and should not be displayed “willy-nilly” to “protect the moral sensibilities.”
But the brief also left the issue open-ended, saying that “While we conclude that the Court of Appeals would uphold the application of Maryland’s indecency laws against female toplessness, we also know that public morals are not static in this realm.”