OCEAN CITY — A group of women that has been challenging a beach town’s ban on topless sunbathing is urging the U.S. Supreme Court to rule against allowing men but not women to show all that skin.
Ocean City on the Eastern Shore passed its ordinance in 2017 after one of the plaintiffs, Chelsea Eline, contacted local police and asserted a right to go topless, The Daily Times reported.
The three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled unanimously in August that the ordinance is constitutional, noting that courts across the country have upheld such measures. The court then denied a request to rehear the case.
Town leaders are within their rights to impose a restriction on women but not men to protect public sensibilities, Judge A. Marvin Quattlebaum Jr. wrote. Chief Judge Roger Gregory concurred, noting that U.S. Supreme Court precedent requires upholding the ban. But he suggested the court should reconsider the issue.
“At first glance, Ocean City’s ordinance seems innocuous enough. ... But we must take care not to let our analysis be confined by the limits of our social lens,” Gregory wrote. “Suppose the ordinance defined nudity to include public exposure of a woman’s hair, neck, shoulders, or ankles. Would that law not run afoul of the Equal Protection Clause?”
The petition asks whether “protecting traditional moral sensibilities” is a governmental interest so important that it merits discriminating against all women. It urges the justices to declare that the ordinance violates the equal protection clause “because the discriminatory gender classification contained in the ordinance does not further an important governmental interest, and is not narrowly tailored to achieve its objective.”
This petition was filed Dec. 1, and the court has until Jan. 7 to respond, according to the U.S. Supreme Court docket.