Battle of the breasts: Federal judge order Colorado town to lift embargo against topless women

A Colorado federal court judge has granted an injunction against a city ordinance that prohibited women from showing their breasts in public. The judge argued the ordinance discriminated against women and perpetuated the stereotype that sexualizes female breasts.

The Colorado town of Fort Collins enacted an ordinance in November 2015 that prohibited females from exposing their breast in public or on private property if that place can be viewed by someone on public property. Someone who violated the ordinance could be fined up to $2,650 or imprisoned for 180 days.

Free the Nipple, an association of Colorado residents who advocate for gender equality protested the ordinance in a public protest with nothing but “opaque dressings” covering their nipples.

The Fort Collins City Council asked the public input, and made two exceptions, breastfeeding mothers and girls younger than 10 years old.

Free the Nipple filed for a preliminary injunction in May 2016 alleging the public nudity ordinance was one of the most restrictive in the nation.

“It’s sexist because it specifically discriminates against females’ breasts,” Brittany Hoagland of Free the Nipple, argued in 2015.

In his decision, Judge R. Brooke Jackson ruled against the city’s claim that the law maintained public order and protected children.

“I find the ordinance discriminates against women based on the generalized notion that, regardless of a woman’s intent, the exposure of her breasts in public (or even in her private home if viewable by the public) is necessarily a sexualized act,” US District Court Judge Jackson wrote, granting the injunction on Wednesday, according to the Denver Post. “Thus, it perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexually desire whereas male breasts are not.”

While the case will continue, the Judge ordered the injunction because he thinks he will ultimately find the ordinance violates the Equal Protection Clause under the 14th Amendment of the US Constitution.

“Unfortunately, our history is littered with many forms of discrimination, including discrimination against women,” he wrote. “As the barriers have come down, one by one, some people were made uncomfortable. In our system, however, the Constitutional prevails over popular sentiment.”

Fort Collins City attorney Carrie Daggett issued a statement Wednesday, in which she said the city would no longer cite women for exposing their breast in public, pending a final decision in the case.

"While the judge has acknowledged the other cases upholding similar laws, he concluded he is likely to find the city’s restriction on female toplessness in public is based on an impermissible gender stereotype that results in a form of gender-based discrimination," she wrote, according to the Coloradoan. "The city is reviewing the judge's decision in this case and city legal, policy and enforcement staff will be considering the city’s options for next steps in light of the order."

Plaintiff Brit Hoagland said the preliminary injunction is a "historic victory."

Hoagland said the fight over the topless ban was not as important as the fight over the right to vote for other current social justice issues that the injunction granted privileges to women that men had all along.

"It’s a huge relief," Hoagland said. "It is definitely a big win."