Topfreedom In The United States

In the United States, individual states have primary jurisdiction in matters of public morality. The topfreedom movement has claimed success in a few instances in persuading some state and federal courts to overturn some state laws on the basis of sex discrimination or equal protection, arguing that a woman should be free to expose her chest (i.e., be topless) in any context in which a man can expose his. Other successful cases have been on the basis of freedom of expression in protest, or simply that exposure of breasts is not indecent (or similar terminology).

Laws and ordinances barring female toplessness are being challenged in federal courts around the nation. Each lawsuit, if it prevails at the appellate level, will legalize topfreedom in the following U.S. circuits of appeal (from west to east): 9 (California), 8 (Missouri) and 4 (Maryland). A federal lawsuit in the 7th Circuit (Illinois), was lost at the appellate level and the petition for review by the U.S. Supreme Court was denied. A preliminary injunction in a federal lawsuit in the 10th Circuit (Colorado), was won at the appellate level. In September 2019, after spending over $300,000, Fort Collins decided to stop defending their ordinance and repeal it. That effectively gave females of all ages the right to go topless wherever males can in the jurisdiction of the 10th Circuit (Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma states as well as all counties and cities therein).

Topless freedom by state

California

State law allows public nudity that is neither lewd nor offensive.

San Francisco allows public female toplessness, although public nudity is banned as of February 2013. Women cannot be topless in San Francisco parks without advance permission from the city. A popular spot for female toplessness in San Francisco is Baker Beach, a nude beach located in the Presidio neighborhood.

In Berkeley it is a misdemeanor or infraction for a woman to expose "any portion of the breast at or below the areola".

Oakland's dress law says that women cannot wear "any type of clothing so that any portion of such part of the breast may be observed".

San Jose bars anything "less than completely and opaquely covered" female breasts.

In Los Angeles, UCSD graduate student Anni Ma, a "Free the Nipple" protester, was arrested for indecent exposure at a Bernie Sanders rally on March 23, 2016, when she removed masking tape covering her nipples. She has filed a federal lawsuit against the Los Angeles Police Department. Her attorney claims she was never "nude" and that California's indecent exposure law applies only to genitals, not breasts. She is also suing for constitutional violations, gender discrimination and violations of federal civil rights laws. She was topless at a Bernie Sanders campaign rally, Saturday, March 19, 2016, in Phoenix, and she was led to the back of the venue without incident.

The Venice Beach neighborhood of Los Angeles, in 1974, was home to a naturist resort that scandalized the community, attracted cameras and spurred LA to ban nudity. Venice Neighborhood Council, in 2015, moved to make the area exempt from the city's ban on topless sunbathing.

In La Jolla, a community of San Diego, female toplessness is allowed in a nude beach called Black's Beach.

Colorado

On February 22, 2017, U.S. District Judge R. Brooke Jackson granted a preliminary injunction against a Fort Collins ordinance banning female toplessness saying it likely violates the Equal Protection Clause of the Fourteenth Amendment due to gender-based discrimination. Britt Hoagland, Samantha Six and Free the Nipple – Fort Collins brought the case in May 2016. The judge wrote: ''the naked female breast is seen as disorderly or dangerous because society, from Renaissance paintings to Victoria's Secret commercials, has conflated female breasts with genitalia and stereotyped them as such. The irony is that by forcing women to cover up their bodies, society has made naked women's breasts something to see.'' As of September 2019, topfreedom is legal throughout the state due to a win in the 10th Circuit Court of Appeals.

Denver and Boulder do not distinguish between male and female toplessness.

Florida

A Florida statute about indecent exposure prohibits the vulgar or indecent exposure of sexual organs but does not specify if female breasts are included as sexual organs. The right to breastfeed in public is expressly protected, and one Florida court inferred that this exception indicates that female breasts are sexual organs and the Supreme Court of Florida held that a separate statute about disorderly conduct can be used to prosecute female toplessness. Courts have rejected equal protection arguments.

The right of a woman to ''protest'' topless has been held to be a freedom of expression and not an equal protection issue. For example, in 2007, a Florida court acquitted a woman of indecent exposure for being topless on Daytona Beach because of the political nature of her stand, under the First Amendment right of free speech. Although there are only a few known public places throughout the state where female toplessness is officially allowed (a nude beach located at Haulover Park, in Bal Harbour), topless bathing is tolerated on South Beach, along with a number of hotel pools in Miami Beach.

Idaho

Nothing in Idaho state law prohibits female topfreedom. Specifically, the Idaho statute regarding indecent exposure, I.C. § 18–4116, prohibits only the exposure of "genitals." Breasts are not genitals, so the state statute does not criminalize topfreedom. Absent a local ordinace, then, female topfreedom is legal in Idaho.

Confusingly, the state statute expressly provides that breastfeeding and pumping do not constitute indecent exposure. While seemingly redundant, the reason is that law and biology do not agree on the term "genitals". While ''biologically'' breasts are not genitals, the traditional ''legal'' definition of genitals includes female breasts, hence the discrepancy.

Although state law does not prohibit women from being topfree, certain municipalities within the state do prohibit it. For example, chapter 6 of title 5 of the Boise City Code presently criminalizes exposure of the female nipple outside of the context of breastfeeding. Such exposure is a misdemeanor. Twin Falls and Moscow also criminalize female topfreedom. Many Idaho municipalities, however, do not prohibit female topfreedom in non-commercial contexts. For example, female topfreedom is legal in these locales: Garden City; Eagle; Meridian; Coeur d'Alene; McCall; Sun Valley; and Ketchum. According to news reports, several women went topfree, apparently without incident, at a Coeur d'Alene beach over the Memorial Day holiday in 2021.

Illinois

Sonoko Tagami, a GoTopless activist, was ticketed for toplessness and fined $100 plus $40 in fees. filed a federal lawsuit challenging the ordinance, but the trial judge dismissed the case without a trial. She then appealed the dismissal to the United States Court of Appeals for the Seventh Circuit. The appeal was heard by a three-judge panel on November 1, 2016. On November 8, 2017, a divided three-judge panel upheld Illinois' ban on female topfreedom two to one. On March 12, 2018, Tagami petitioned to appeal her loss before the United States Supreme Court. On April 16, 2018, her petition was denied.

Kansas

As of September 2019, topfreedom is legal throughout the state due to a win in the 10th Circuit Court of Appeals. The City of Manhattan amended its city code to allow female toplessness. But topless women can still run afoul of the state's lewd and lascivious behavior law.

Maine

In 2010 women marched topless in Portland, Maine to protest against what they saw as a social double standard regarding male and female nudity, specifically the right to public toplessness. Police in Portland did not prevent the march, as nudity is illegal in Maine only if genitals are displayed.

Maryland

On May 20, 2017, Captain Butch Arbin, head of the Ocean City Beach Patrol instructed workers to document complaints of toplessness, but not approach topless women, even if the complainants requested it. Arbin changed the beach patrol's policy since the Maryland Attorney General has not released an opinion about female public toplessness in response to a formal request last year by a female resident and a topfree advocate who uses the pseudonym "Chelsea Covington." In response, on June 10, 2017, the town held an emergency meeting and passed Emergency Ordinance 2017–10, which made it unlawful for all females of all ages to be bare-chested in public, for purposes other than breastfeeding, in the same locations where it is lawful for males to be bare-chested. Violations of the ordinance will result in a $1,000 fine.

On January 16, 2018, Chelsea C. Eline, and four other women filed a federal lawsuit against Ocean City seeking preliminary and permanent injunctive relief. On December 20, 2018, U.S. District Judge James K. Bredar denied the preliminary injunction request.
On April 7, 2020, Judge Bredar ruled on a motion for summary judgment that the city's ban on female toplessness was constitutional, noting “ e Court finds that protecting the public sensibilities from the public display of areas of the body traditionally viewed as erogenous zones — including female, but not male, breasts — is an important government objective.” “Whether or not society ''should'' differentiate between male and female breasts is a separate inquiry from whether it is constitutional to do so” (emphasis in original). Bredar said his decision is consistent with past rulings from the U.S. Court of Appeals for the 4th Circuit, which reviews appeals from Maryland. The Supreme Court, he noted, has also maintained that physical differences between men and women — as opposed to stereotypes about men and women — can provide a valid basis for laws that treat men and women differently. But Bredar also said “ is Court questions whether laws which distinguish between men and women based on ‘public sensibilities’ can survive indefinitely. Such amorphous concepts are vulnerable to prejudice and stereotypes grounded more in fear than in reality.”

Massachusetts

In December 2007, 50 residents of Pittsfield, Massachusetts petitioned the City Council requesting a segregated beach for topless sunbathing by both men and women. The petition was rejected by the council, with the Mayor calling it "unacceptable and unnecessary". Proponents of topless sunbathing vowed to continue their fight. In 2010, 200 residents of Pittsfield placed a question on the ballot asking whether State laws should be clarified to allow topless sunbathing equally for both men and women. The proposal was defeated 2,934 to 6,855. On May 3, 2022, the government of Nantucket decided to approve an amendment which allows the practice of female toplessness in all public and private beaches of the town (based on the principle of gender equality). The proposal was approved by Attorney General Maura Healey on December 6, 2022.

Michigan

In 2020, the city of East Lansing, Michigan amended its disorderly conduct laws to remove a clause specifically prohibiting women from exposing their breasts.

Minnesota

It is legal for anyone in Minnesota to be topless. However, the law is ambiguous because lewd exposure is considered illegal. On November 18, 2020, the Minneapolis Park and Recreation Board voted to allow anyone to go topless in the city's parks without being ticketed.

Missouri

On October 26, 2015, the ACLU of Missouri, on behalf of Jessica Lawson and Amber Hutchison representing "Free the Nipple—Springfield Residents Promoting Equality", filed suit against the City of Springfield over its anti-topless ordinance in the District Court for the Western District of Missouri of the United States Court of Appeals for the Eighth Circuit. On January 22, 2016, the court granted a preliminary injunction barring the enforcement of the ordinance. On October 5, 2017, a federal judge upheld Springfield's ordinance that requires a woman, but not a man, to completely cover their areola with an opaque material. On May 6, 2019, the Eighth Circuit court of appeals affirmed the district court's decision.

Nebraska

The City of Lincoln has an ordinance prohibiting women from being topless.

New Hampshire

In February 2016, a judge dismissed a case against two female "Free the Nipple" activists, Heidi Lilley and Barbara MacKinnon, who were cited for being topless at Gilford beach. Because the judge decided "the town lacked authority for a prosecution because there is no state law that prohibits the exposure of female breasts in public," and the town "lacked authority for a criminal prosecution that's neither prohibited by the criminal code nor by statute," a bill to ban women from exposing their nipples in public was introduced. The bill would make it a misdemeanor for women to show their breasts or nipples in public with "reckless disregard" for whether it would offend someone. The New Hampshire chapter of the ACLU opposed the bill. On March 9, 2016, the proposed ban legislation was defeated. On February 8, 2019, the New Hampshire supreme court, in a 3 to 2 decision, ruled that the city of Laconia's ordinance does not discriminate on the basis of gender or violate the women's right to free speech. The women appealed to the U.S. Supreme Court, but their appeal was denied.

New Jersey

In 2008, Phoenix Feeley (aka Jill Coccaro) was charged with violating an ordinance prohibiting public nudity in Spring Lake, New Jersey

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