Bench Memos

Law & the Courts

Tenth Circuit Ruling Attacks ‘Stereotype’ That Women’s Breasts Are Erotic

In a ruling today in Free the Nipple-Fort Collins v. City of Fort Collins, a divided panel of the Tenth Circuit has enjoined, on equal-protection grounds, a city ordinance that prohibits women from baring their breasts in public (other than for purposes of breastfeeding) but imposes no restrictions on male toplessness.

In his majority opinion (joined by Judge Mary Beck Briscoe), Judge Gregory A. Phillips cites with approval the district court’s objection that the ordinance “perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” In a classic false dichotomy, Phillips concludes that the city’s “professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.” Ditto for “notions of morality” that might underlie the law.

In dissent, Judge Harris L. Hartz provides some much-needed sense. Some excerpts:

[The city’s ordinance] is part of a long tradition of laws prohibiting public indecency—the public display of portions of the anatomy that are perceived as particularly erotic or serve an excretory function. These laws may be justified as reducing or preventing antisocial behavior caused by indecent exposure: offensive behavior ranging from assault to corruption of youth to simply distraction from productive activity. The Ordinance does not discriminate against women on the basis of any overbroad generalization about their perceived “talents, capacities, or preferences.” To the extent it distinguishes between the sexes, it is based on inherent biological, morphological differences between them. Those differences are not stereotypes. They are not statistical differences, they are not matters of degree. They are differences in anatomical structure that reflect the unique biological roles played by males and females. (Plaintiffs’ “evidence” that the breasts of men and women are essentially identical cannot be taken seriously.) …

And, to go back to first principles in equal-protection jurisprudence, there is nothing inherently invidious to an adult of either gender in declaring that an inherent biological, morphological feature of his or her body is erotic….

Further, even if notions of the erotic are purely culturally based, it is unclear why that is relevant to the validity of indecency laws. The purpose of those laws is to reduce antisocial behavior. Such laws must deal with the real world. Legislation itself is rational even if the behavior it attempts to control is irrational (such as sexual assault purportedly caused by objectification of the female body). What would be the state of society if legislation could control only rational behavior? A regulation designed to reduce the antisocial effects of irrational thinking does not constitute an endorsement of that irrational thinking. Are laws regulating pornography and obscenity invalid if the societal harms they are intended to prevent are caused by cultural influences rather than purely biological ones?

Phillips acknowledges that his panel’s conclusion “is the minority viewpoint” and that “[m]ost other courts, including a recent (split) Seventh Circuit panel [opinion here], have rejected equal-protection challenges to female-only toplessness bans.” Perhaps it will soon be up to the Supreme Court to address the cleavage between the Tenth Circuit and the Seventh Circuit.

Something to Consider

If you enjoyed this article, we have a proposition for you: Join NRPLUS. Members get all of our content (including the magazine), no paywalls or content meters, an advertising-minimal experience, and unique access to our writers and editors (conference calls, social-media groups, etc.). And importantly, NRPLUS members help keep NR going. Consider it?

If you enjoyed this article, and were stimulated by its contents, we have a proposition for you: Join NRPLUS.


Most Popular


What We’ve Learned about Jussie Smollett

It’s been a few weeks since March 26, when all charges against Jussie Smollett were dropped and the actor declared that his version of events had been proven correct. How’s that going? Smollett’s celebrity defenders have gone quiet. His publicists and lawyers are dodging reporters. The @StandwithJussie ... Read More

Kamala Harris Runs for Queen

I’m going to let you in on a secret about the 2020 presidential contest: Unless unforeseen circumstances lead to a true wave election, the legislative stakes will be extremely low. The odds are heavily stacked against Democrats’ retaking the Senate, and that means that even if a Democrat wins the White House, ... Read More
Energy & Environment

The Climate Trap for Democrats

The more the climate debate changes, the more it stays the same. Polls show that the public is worried about climate change, but that doesn’t mean that it is any more ready to bear any burden or pay any price to combat it. If President Donald Trump claws his way to victory again in Pennsylvania and the ... Read More

Why Are the Western Middle Classes So Angry?

What is going on with the unending Brexit drama, the aftershocks of Donald Trump’s election, and the “yellow vests” protests in France? What drives the growing estrangement of southern and eastern Europe from the European Union establishment? What fuels the anti-EU themes of recent European elections and ... Read More
White House

Sarah Sanders to Resign at End of June

Sarah Huckabee Sanders will resign from her position as White House press secretary at the end of the month, President Trump announced on Twitter Thursday afternoon. Sanders, the daughter of former Arkansas governor Mike Huckabee, succeeded Sean ... Read More
Politics & Policy

But Why Is Guatemala Hungry?

I really, really don’t want to be on the “Nicolas Kristof Wrote Something Dumb” beat, but, Jiminy Cricket! Kristof has taken a trip to Guatemala, with a young woman from Arizona State University in tow. “My annual win-a-trip journey,” he writes. Reporting from Guatemala, he discovers that many ... Read More
Politics & Policy

The Lessons of the Mueller Probe

Editor’s Note: The following is the written testimony submitted by Mr. McCarthy in connection with a hearing earlier today before the House Permanent Select Committee on Intelligence on the Mueller Report (specifically, the first volume of the report, which addresses Russia’s interference in the 2016 ... Read More