HomeMy WebLinkAbout2016CV1308 - FTN - FORT COLLINS V. CITY OF FORT COLLINS - 047 - DEFENDANT'S HEARING BRIEFIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01308-RBJ-KLM
FREE THE NIPPLE – FORT COLLINS,
BRITTIANY HOAGLAND,
SAMANTHA SIX,
Plaintiffs,
v.
CITY OF FORT COLLINS, COLORADO,
Defendant.
DEFENDANT’S HEARING BRIEF
Defendant City of Fort Collins, Colorado (the “City”), through its attorneys, Andrew D.
Ringel, Esq., Gillian Dale, Esq., and Christina S. Gunn, Esq., of Hall & Evans, LLC, and Carrie
Mineart Daggett, Esq., and John R. Duval, Esq., of the Fort Collins City Attorney’s Office,
hereby file this Hearing Brief in anticipation of the hearing on Plaintiff’s Motion for Preliminary
Injunction, on December 19, 2016, at 1:30 p.m., as follows:
ARGUMENT
I. Sex Based Classifications Are Not Limited to
Compensation for Historical Inequities
In its Order on the City’s Motion to Dismiss, this Court interpreted the Supreme Court’s
1996 equal protection rulings as permitting a classification based on “real” differences between
men and women only “when such laws ‘compensate’ one sex for the disabilities or inequities
that sex has historically suffered.” [ECF 37 at p.12 (citing United States v. Virginia, 518 U.S.
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 1 of 14
2
515, 531 (1996))]. Respectfully, the City does not believe the holding of Virginia is so limiting.1
The particular passage at issue states as follows:
Inherent differences between men and women, we have come to appreciate,
remain cause for celebration, but not for denigration of the members of either sex
or for artificial constraints on an individual’s opportunity. Sex classifications may
be used to compensate women for particular economic disabilities [they have]
suffered, to promote equal employment opportunity, to advance full development
of the talent and capacities of our Nation’s people. But such classifications may
not be used, as they once were, to create or perpetuate the legal, social, and
economic inferiority of women.
Virginia, 518 U.S. at 533-34 (citations and internal quotations omitted) (alteration in original)].
While this passage does acknowledge sex-based classifications may be used to compensate
women for prior inequities, it does not state sex-based classification can only be used to
compensate women for prior inequities.2
To the contrary, the actual holding of Virginia is that to support a classification based on
gender, the government entity “must show that the [challenged] classification serves important
governmental objectives and that the discriminatory means employed are substantially related to
the achievement of those objectives.” Id. at 533 (citation and internal quotations omitted)
(alteration in original). The Supreme Court in Virginia expressly acknowledged sex is not a
proscribed classification, and while it held inherent differences are no longer accepted as a
1 In light of the fact that a hearing on the Motion for Preliminary Injunction had already
been set when this Court issued the Order on the Motion to Dismiss, the City determined to raise
this issue in connection with the hearing instead of filing a Motion to Reconsider.
2 Although Virginia did discuss whether the remedial measure of a separate military
school for women would eliminate the effects of past discrimination, that discussion took place
after the determination of an equal protection violation arising from the prohibition on women at
the Virginia Military Institute. Virginia, 518 U.S. at 547. Here, if the ordinance does not violate
women’s equal protection rights there is no need to evaluate whether any remedial measure
would eliminate the effects of past discrimination.
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 2 of 14
3
ground for race or national origin classifications, it also acknowledged: “[p]hysical differences
between men and women, however, are enduring: The two sexes are not fungible; a community
made up exclusively of one [sex] is different from a community composed of both.” Id.
(citations and internal quotations omitted) (alteration in original).
In fact, since Virginia the Supreme Court has upheld a sex-based distinction having no
relation to compensation for prior inequities in the face of an equal protection challenge. In Tuan
Anh Nguyen v. INS, 533 U.S. 53 (2001), the Supreme Court considered whether an immigration
law providing different standards for acquiring citizenship by a child born outside of the United
States to unwed parents, one of whom is a citizen of the United States and one of whom is an
alien. Under the law at issue, if the father was the citizen and the mother was the alien, the child
was required to satisfy requirements to establish citizenship not imposed if the mother was the
citizen and the father was the alien. Id. at 59-60. The Supreme Court found no equal protection
violation in this differential treatment, noting the reality that contrary to fathers, mothers are
always present at the birth of their child and parenthood can be established by the birth itself. Id.
at 68. The Supreme Court rejected the plaintiff’s assertion the law embodied a gender-based
stereotype, stating:
There is nothing irrational or improper in the recognition that at the moment of
birth -- a critical event in the statutory scheme and in the whole tradition of
citizenship law -- the mother’s knowledge of the child and the fact of parenthood
have been established in a way not guaranteed in the case of the unwed father.
This is not a stereotype. See Virginia, 518 U.S. at 533 (‘The heightened review
standard our precedent establishes does not make sex a proscribed classification . .
. . Physical differences between men and women . . . are enduring’).
Id. Here, there are enduring physical differences between men and women that support the City’s
distinction between male and female toplessness, as discussed further below.
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 3 of 14
4
It is especially instructive that, since Virginia, both federal and state courts have applied
Virginia in evaluating equal protection challenges to topless bans applicable only to women, and
in each case have rejected the equal protection arguments and upheld the women-only topless
bans. For example, in Ways v. City of Lincoln, 331 F.3d 596, 600 (8th
Cir. 2003), the Eighth
Circuit applied Virginia to an argument that a nudity ordinance violated the right to equal
protection by permitting men to expose their breasts but not women. The court noted that
arguably the heightened scrutiny standard of Virginia did not apply because the “discrimination”
was “based on a real physical difference between men and women’s breasts, thus men and
women were not similarly situated for equal protection purposes.” Ways, 331 F.3d at 600 n.3.
Nevertheless, the court determined the public nudity ordinance satisfied Virginia’s requirement
to show the classification was substantially related to the achievement of important government
objectives, citing the “city’s interests in preventing the secondary adverse effects of public nudity
and protecting the order, morality, health, safety, and well-being of the populace.” Id. at 600.
In Buzzetti v. City of New York, 140 F.3d 134, 135 (2d Cir. 1998), the Second Circuit
considered an equal protection challenge to an ordinance applicable to female topless
entertainment but not to male topless entertainment. The court set out the standard of review
from Virginia, and noted its explicit determination that sex is not a proscribed classification. Id.
at 141. The court noted “[s]tatutes that fairly can be seen as responding to clear sexual
differences between men and women are among those laws that courts have upheld, despite the
gender-based classifications contained in them.” Id. (citations omitted). Applying those
precedents, the court held: “New York City’s objectives of preventing crime, maintaining
property values, and preserving the quality of urban life, are important. We also believe that the
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 4 of 14
5
Zoning Amendment’s regulation of female, but not male, topless dancing, in the context of its
overall regulation of sexually explicit commercial establishments, is substantially related to the
achievement of New York City's objectives.” Id. at 142. The court further observed:
Given New York City’s objective, which is not to oppress either gender’s
sexuality but to control effects that flow from public reaction to the conduct
involved, we must recognize that the public reactions to the exhibition of the
female breast and the male breast are highly different. The male chest is routinely
exposed on beaches, in public sporting events and the ballet, and in general
consumption magazine photography without involving any sexual suggestion. In
contrast, public exposure of the female breast is rare under the conventions of our
society, and almost invariably conveys sexual overtones. It is therefore
permissible for New York City, in its effort to achieve the objectives of the
Zoning Ordinance, to classify female toplessness differently from the exhibition
of the naked male chest. This does not constitute a denial of equal protection.
Id. at 143; see also City of Jackson v. Lakeland Lounge, 688 So. 2d 742 (Miss. 1996) (issued
after, but not citing, Virginia, and rejecting Equal Protection Clause challenged to ordinance
banning only female toplessness).
In C.T. v. State of Indiana, 939 N.E.2d 626, 627 (Ind. App. 2010), the Court of Appeals
of Indiana applied Virginia in the context of a delinquency petition involving a minor cited with
public nudity after baring her breasts in public. The plaintiff argued the state’s public nudity
statute violated the Equal Protection Clause of the Fourteenth Amendment because it
criminalized the public display of female, but not male, nipples. Id. at 628. After quoting
extensively from Virginia, the court first concluded preserving order and morality remained an
important governmental objective, and held “the statute furthers the goal of protecting the moral
sensibilities of that substantial portion of Hoosiers who do not wish to be exposed to erogenous
zones in public.” Id. at 630. The court read the plaintiff’s argument as requesting it to “declare
by judicial fiat that the public display of fully-uncovered female breasts is no different than the
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 5 of 14
6
public display of male breasts, when the citizens of Indiana, speaking through their elected
representatives, say otherwise. This we will not do.” Id. at 629-30. The court proceeded to
distinguish cases, like Virginia, finding an equal protection violation where sex-based
distinctions disadvantaged women:
It is also well worth noting that there is no indication that the public nudity statute
is in any way invidious. The statute does not seem to disadvantage women in any
significant way, and, indeed, C.T. does not claim that it does. The public nudity
statute does not demean women or materially affect their ‘equal opportunity to
aspire, achieve, participate in and contribute to society based on their individual
talents and capacities.’ United States v. Virginia, 518 U.S. 515, 532, 116 S. Ct.
2264, 135 L. Ed. 2d 735 (1996). This is in stark contrast to those cases where an
infringement of rights or serious deprivation of opportunities has been the result
of a gender-based regulation. See, e.g., J.E.B. v. Alabama ex rel T.B., 511 U.S.
127, 146, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994) (concluding that the Equal
Protection Clause prohibits discrimination in jury selection based on gender),
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 733, 102 S. Ct. 3331, 73 L. Ed.
2d 1090 (1982) (concluding that state university’s policy of excluding males on
basis of gender violates Equal Protection Clause). Because Indiana’s public
nudity statute serves the important governmental objective of preserving order
and morality and does not disadvantage women in any significant way, we
conclude that it does not run afoul of the Equal Protection Clause. In so doing, we
join the overwhelming majority of courts who have rejected similar challenges.
See, e.g., Ways v. City of Lincoln, 331 F.3d 596 (8th Cir. 2003); Buzzetti v. City
of New York, 140 F.3d 134 (2nd Cir. 1998); Biocic, 928 F.2d at 112 (4th Cir.
1991); Craft v. Hodel, 683 F. Supp. 289 (D. Mass 1988).
Id. at 630.
In City of Albuquerque v. Sachs, 135 N.M. 578, 579 (N.M. App. 2004), the Court of
Appeals of New Mexico considered a challenge under the state’s Equal Rights Amendment to a
city ordinance prohibiting only women from showing their breasts in public. The court found
cases from across the country “convincingly make the point that prohibiting public exposure of
the female breast but not the male breast does not operate to the disadvantage of women” and
does not violate federal and state equal protection provisions. Id. at 582. Finding such cases
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 6 of 14
7
“generally uphold the sex-based distinction on the basis of the differing physical characteristics
of men and women,” the court was persuaded that “the physical characteristic distinctions made
by the City Ordinance do not operate to the disadvantage of women.” Id. at 583. The court
observed: “The City Ordinance does not prohibit public nudity by women while allowing public
nudity by men. It recognizes that females and males have different anatomies, so the objective is
accomplished in a non-discriminatory manner. In this context, we agree with the United States
Supreme Court that, ‘the two sexes are not fungible; a community made up exclusively of one
[sex] is different from a community composed of both.’ United States v. Virginia, 518 U.S. 515,
533, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996) (internal quotation marks and citation omitted).
We therefore hold that the City Ordinance does not make an invidious gender classification that
operates to the disadvantage of women and it does not violate the New Mexico Equal Rights
Amendment.” Id.
In State v. Vogt, 775 A.2d 551, 552 (N.J. App. Div. 2001), the Superior Court of New
Jersey, Appellate Division, considered an equal protection challenged to a conviction for nudity
in a public place. The court determined applying the nudity ban only to women’s breasts was
based on “an indisputable difference between the sexes,” and was substantially related to the
important governmental interest in safeguarding the public’s moral sensibilities. Id. at 557. The
court specifically rejected the plaintiff’s assertion that Virginia’s requirement of an “exceedingly
persuasive” showing in support of a gender classification undermined the precedential value of
prior cases upholding gender distinctions in topless bans, and held “the State’s position with
respect to the difference between the exposure of the female breast and that of the male breast
exceedingly persuasive.” Id. at 559.
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 7 of 14
8
In sum, following Virginia, multiple federal and state courts continue to uphold topless
bans applicable only to women in the face of equal protection challenge. The City has not
located (nor have Plaintiffs cited) a single case overturning such a ban as a violation of the right
to equal protection as a result of Virginia.
II. Section 17-142 is Premised On Biological
Differences Between Men and Women
Although the morphological structure of human breasts is identical between males and
females until puberty, during puberty female sex hormones and growth hormones promote the
growth and development of the breasts. Breast,
https://en.wikipedia.org/w/index.php?title=Breast&oldid=754681966 (last visited Dec. 13, 2016)
(citations omitted throughout) (printed version attached hereto as Exhibit 1). Breasts are
composed principally of adipose, glandular, and connective tissues, and hormone receptors in
these tissues cause their size and volume to fluctuate in response to hormonal changes at
thelarche (sprouting of the breasts), menstruation, pregnancy, lactation, and menopause. Id.
Although the primary function of female breasts is the feeding of an infant, they also have social
and sexual characteristics. Id. Female breasts can figure prominently in a woman’s perception of
her body image and sexual attractiveness. Id. In Western culture, breasts have a hallowed sexual
status, arguably more fetishized than either sex’s gentialia. Id.
Wikipedia’s Breast article contains the following further description of female breasts:
Breasts and especially the nipples are among the various human erogenous zones.
They are sensitive to the touch as they have many nerve endings; and it is
common to press or massage them with hands or orally before or during sexual
activity. Some women can achieve an orgasm from such activities.
Research suggests that the sensations are genital orgasms caused by nipple
stimulation, and may also be directly linked to ‘the genital area of the brain.’
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 8 of 14
9
Sensation from the nipples travels to the same part of the brain as sensations from
the vagina, clitoris and cervix. Nipple stimulation may produce uterine
contractions, which then produce a sensation in the genital area of the brain. In the
ancient Indian work the Kama Sutra, light scratching of the breasts with nails and
biting with teeth are considered erotic. During sexual arousal, breast size
increases, venous patterns across the breasts become more visible, and nipples
harden. Compared to other primates, human breasts are proportionately large
throughout adult females’ lives. Some writers have suggested that they may have
evolved as a visual signal of sexual maturity.
Many people regard the female human body, of which breasts are an important
aspect, to be aesthetically pleasing, as well as erotic. Research conducted at the
Victoria University of Wellington showed that breasts are often the first thing
men look at, and for a longer time than other body parts. The writers of the study
had initially speculated that the reason for this is due to endocrinology with larger
breasts indicating higher levels of estrogen and a sign of greater fertility, but the
researchers said that ‘Men may be looking more often at the breasts because they
are simply aesthetically pleasing, regardless of the size.’
Many people regard bare female breasts to be erotic, and they can elicit
heightened sexual desires in men in many cultures. Some people show a sexual
interest in female breasts distinct from that of the person, which may be regarded
as a breast fetish. A number of Western fashions include clothing which
accentuate the breasts, such as the use of push-up bras and decollete (plunging
neckline) gowns and blouses which show cleavage.
Id. Significantly, this Breast article from Wikipedia relates to female breasts, and there is no
separate article relating to the male breast.
Research has demonstrated that after puberty the tactile sensitivity of all areas of a
woman’s breasts is significantly greater than a man’s. J.E. Robinson & R.V. Short, Changes if
breast sensitivity at puberty, during the menstrual cycle, and at parturition, British Medical
Journal (1977) 1, 1188-1191 (attached as Exhibit 2). In a seminal study of human sexual
interactions, it was reported that 98% of couples engaged in manual stimulation of the female
breast, and 95% engaged in oral stimulation of the female breast, but there was no discussion of
stimulation of the male breast. Data from Alfred Kinsey’s studies, Kinsey Institute at Indiana
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 9 of 14
10
University, http://www.indiana.edu/~kinsey/research/ak-data.html#foreplay (last visited
December 15, 2016) (printout attached as Exhibit 3).
In this case, the City Council heard testimony from a graduate student at Colorado State
University, explaining that women’s breasts were developed to signal men that they were fertile
and ready for sex, and that female areola release pheromones that attract males, signaling sex.
[Fort Collins City Council Meeting, 10/20/2015, Agenda Item 18, at 11:21-12:6, 12:24-13:3
(relevant portions attached as Exhibit 4)]. By contrast, he stated that male nipples are “as
important to the body as an appendix, simply being left-over DNA in an embryo before sex is
even determined in utero.” [Id. at 12:7-9]. As a result, he testified, “we cannot say that male and
female chests are equal.” [Id. at 12:10-11].
These physiological and sexual distinctions between male and female breasts provide
either implicit or explicit support for the myriad decisions, cited in the Motion to Dismiss
briefing, upholding female toplessness bans in the face of equal protection challenges. In fact, in
one of those cases the defendant city presented evidence of such distinctions, including a
doctor’s testimony that distinguishing between male and female breasts in defining nudity was
“certainly consistent with what we know medically about human sexual response.” Hang On,
Inc. v. City of Arlington, 65 F.3d 1248, 1256 (5th Cir. 1995);3
see also MJR'S Fare v. Dallas,
792 S.W.2d 569, 575 (Tex. App. Dallas 1990) (considering expert testimony regarding the
physiological and sexual distinctions between male and female breasts, the internal and external
differences between male and female breasts, and the fact that the female breast, but not the male
3 While acknowledging this testimony, the Fifth Circuit also felt compelled to comment
on the energy expended on these issues, stating “[c]ourts need no evidence to prove self-evident
truths about the human condition – such as water is wet.” Id. at 1257.
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 10 of 14
11
breast, is a mammary gland, in rejecting an equal protection challenge to a state law defining
nudity to include only the female breast).
In other contexts, courts citing Virginia continue to acknowledge that the biological
differences between men and women may still provide a legal reason for differential treatment of
the sexes. See, e.g., Nguyen, 533 U.S. at 64 (“Here, the use of gender specific terms takes into
account a biological difference between the parents. The differential treatment is inherent in a
sensible statutory scheme, given the unique relationship of the mother to the event of birth.”); G.
G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) (“Thus, Title IX's allowance for
the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities
rests on the universally accepted concern for bodily privacy that is founded on the biological
differences between the sexes. This privacy concern is also linked to safety concerns that could
arise from sexual responses prompted by students' exposure to the private body parts of students
of the other biological sex.”); Bauer v. Lynch, 812 F.3d 340, 350 (4th Cir. 2016) (“Men and
women simply are not physiologically the same for the purposes of physical fitness programs.
The Supreme Court recognized as much in its discussion of the physical training programs
addressed in the VMI litigation, albeit in the context of a different legal claim than that presented
today. The Court recognized that, although Virginia’s use of ‘generalizations about women’
could not be used to exclude them from VMI, some differences between the sexes were real, not
perceived, and therefore could require accommodations. See VMI, 518 U.S. at 550 & n.19. To be
sure, the VMI decision does not control the outcome of this appeal. Nevertheless, the Court’s
observation therein regarding possible alterations to the physical training programs of the service
academies informs our analysis of Bauer’s Title VII claims. That is, physical fitness standards
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 11 of 14
12
suitable for men may not always be suitable for women, and accommodations addressing
physiological differences between the sexes are not necessarily unlawful.”); Johnston v. Univ. of
Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F. Supp. 3d 657, 670 (W.D. Pa.
2015) (“As such, separating students by sex based on biological considerations—which involves
the physical differences between men and women—for restroom and locker room use simply
does not violate the Equal Protection Clause.”).
In this case, Plaintiffs urge this Court to disregard the differences between male and
female breasts, and to treat as equal things that are not. As the Supreme Court observed:
To fail to acknowledge even our most basic biological differences -- such as the
fact that a mother must be present at birth but the father need not be -- risks
making the guarantee of equal protection superficial, and so disserving it.
Mechanistic classification of all our differences as stereotypes would operate to
obscure those misconceptions and prejudices that are real. The distinction
embodied in the statutory scheme here at issue is not marked by misconception
and prejudice, nor does it show disrespect for either class. The difference between
men and women in relation to the birth process is a real one, and the principle of
equal protection does not forbid Congress to address the problem at hand in a
manner specific to each gender.
Nguyen, 533 U.S. at 73. In this case, Plaintiff urge this Court to disregard the most basic
biological differences between the breasts of men and women and instead mechanistically
classify Section 17-142’s gender distinction as a sex stereotype. Contrary to Plaintiffs’
inflammatory characterization and rhetoric, Section 17-142 is not marked by misconception or
prejudice and does not show disrespect for women. The difference between men and women in
relation to breasts is a real biological one, and equal protection does not forbid cities and states
from acknowledging this difference in their public nudity laws.
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 12 of 14
13
Dated this 16th
day of December, 2016.
Respectfully submitted,
/s/ Gillian Dale
Andrew D. Ringel, Esq.
Gillian Dale, Esq.
Christina S. Gunn, Esq.
HALL & EVANS, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
daleg@hallevans.com
gunnc@hallevans.com
/s/ John Duval
Carrie Mineart Daggett, Esq.
John R. Duval, Esq.
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80521
Phone: 970-221-6520
Fax: 970-221-6327
cdaggett@fcgov.com
jduval@fcgov.com
ATTORNEYS FOR DEFENDANT CITY OF
FORT COLLINS, COLORADO
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 13 of 14
14
CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 16th
day of December, 2016, I electronically filed the
foregoing DEFENDANT’S HEARING BRIEF with the Clerk of Court using the CM/ECF
system which will send notification of such filing to the following e-mail addresses:
David A. Lane, Esq.
dlane@kln-law.com
Andy McNulty, Esq.
amcnulty@kln-law.com
Jessica K. Peck, Esq.
jessica@jpdenver.com
/s/ Denise Gutierrez, Legal Assistant to
Gillian Dale
Hall & Evans, L.L.C.
Attorneys for Defendants
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
daleg@hallevans.com
Case 1:16-cv-01308-RBJ Document 47 Filed 12/16/16 USDC Colorado Page 14 of 14