City Council ‘frees the nipple’ by striking topless ban

Samantha Ye

Fort Collins will remove their defunct women-only topless ban in adherence with the U.S. District Court’s decision, finalizing the end of a several hundred thousand dollar legal battle.

City Council unanimously approved cutting the language from their public nudity ordinance that forbade women over 10 years old from exposing their nipples and breasts in a public or publicly visible space. 

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Privately owned spaces such as churches, schools and businesses can still ask people to leave if they are topless and call the police to report trespassing.

“The revisions simply mean City police can no longer issue citations for women going topless,” City Attorney Carrie Daggett said.                                         

The ban has been unenforceable since 2017, when the City lost the ordinance to a lawsuit filed against it.  

“It became clear to me that (the court case) wasn’t going to go where we wanted it to go and would continue to cost the city large amounts of money,” Councilmember Ross Cunniff said. “We did our best; it didn’t work, so we should simplify.”

The ruling will be finalized through a second hearing upon which the language will officially be removed from City code.

We lost in court, and we have a settlement here that was agreeable, maybe not to a lot of people, but this is what we have here today.” -Kristin Stephens, Mayor Pro Tem

History

The City ordinance was originally challenged in May 2016 by two women as part of the national Free the Nipple movement, according to the Coloradoan. Samantha Six and Brittany Hoagland argued that the female-only section of the ordinance violated the equal protection clause of the Fourteenth Amendment and the free speech clause of the First Amendment. 

The City argued that the ordinance maintained public order and protected children.

In the first outcome of the lawsuit, the Federal District Court placed an injunction on the ordinance in March 2017. Women have been free to go topless in Fort Collins since. 

The federal judge said the City did not provide any “meaningful evidence” to support their arguments, according to the Coloradoan. He also criticized the law for perpetuating the stereotype that “female breasts are primarily objects of sexual desire whereas male breasts are not.”

The City lost under similar reasoning at the 10th Circuit Court of Appeals. 

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Going forward

In May 2019, the Council voted 4-3 not to appeal the case to the Supreme Court of the United States, according to the Coloradoan.

The City has spent $120,000 on defense and negotiated a $202,000 payment to cover the plaintiffs’ legal fees, according to Daggett, as reported by the Coloradoan.

During the May meeting, Councilmember Ken Summers pointed out that because the District Court decision applies to multiple states — Colorado, Wyoming, New Mexico, Kansas, Utah and Oklahoma — taking it to the SCOTUS would result in a definitive decision for everyone. 

Summers brought up this concern again on Tuesday, as did Mayor Wade Troxell and Councilmember Susan Gutowsky, who had both voted to continue the fight. 

“This is (the) unsettled law of the land,” Troxell said, referring to two other federal court cases that ruled in favor of female-specific topless bans. “It needs to be defined at the Supreme Court level, but that’s not where we are at tonight.”

At City Council

Of the nine residents who spoke at the meeting, eight spoke against the revision.

One resident said she works at a high school and is trying to keep the girls dressed modestly and that legalizing female toplessness sends a bad message. Multiple men compared women going topless with pornography and one said he considered it “sexual harassment against me.” 

A Colorado law against indecent exposure still prohibits exposure of genitalia with the intention of sexual arousal.

While some supporters of Free the Nipple have said it was unlikely women would start going topless just because it was legal, former Councilmember Ray Martinez said he saw topless women at Tour De Fat, the costumed bike festival celebrating beer culture. 

Although councilmembers acknowledged and at times agreed with the concerns of residents, they unanimously voted to strike the unenforceable law. 

“We lost in court, and we have a settlement here that was agreeable, maybe not to a lot of people, but this is what we have here today,” Mayor Pro Tem Kristin Stephens said. 

More at Council

Ben Amundson, president of the Associated Students of Colorado State University, spoke to the Council about the administration’s priorities during the public comment portion. Amundson said the student government would like to collaborate with the City on communicating with students about electric scooter safety, municipal broadband and housing capacity regulations like U+2.

The Council also reopened the possibility of a resolution to reaffirm trust with the immigrant community in light of the treatment migrants are facing on the U.S. border. 

Samantha Ye can be reached at news@collegian.com or on Twitter @samxye4.