HomeMy WebLinkAbout2017CA1103 - APPEAL - FTN - FORT COLLINS V. CITY OF FORT COLLINS, ET AL - 009 - OPENING BRIEFIN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
FREE THE NIPPLE – FORT COLLINS, )
BRITTIANY HOAGLAND, and )
SAMANTHA SIX, )
Plaintiffs-Appellees, )
)
v. ) Case No. 17-1103
)
CITY OF FORT COLLINS, COLORADO )
Defendant-Appellant. )
__________________________________________________________________
OPENING BRIEF
__________________________________________________________________
On appeal from a ruling granting Plaintiffs’ Motion for Preliminary
Injunction, by the Honorable R. Brooke Jackson, in the United States District Court
for the District of Colorado, Civil Action No. 16-cv-01308-RBJ.
ORAL ARGUMENT IS REQUESTED
THIS DOCUMENT HAS BEEN CONVERTED TO NATIVE PDF
July 19, 2017
Andrew D. Ringel, Esq. Carrie Mineart Daggett, Esq.
Gillian Dale, Esq. John R. Duval, Esq.
Christina S. Gunn, Esq. Fort Collins City Attorney’s Office
HALL & EVANS, L.L.C. 300 LaPorte Avenue
1001 17th Street, Suite 300 Fort Collins, CO 80521
Denver, CO 80202 Phone: 970-221-6520
Phone: 303-628-3300 Fax: 970-221-6327
Fax: 303-628-3368 cdaggett@fcgov.com
ringela@hallevans.com jduval@fcgov.com
daleg@hallevans.com
gunnc@hallevans.com
ATTORNEYS FOR DEFENDANT-
APPELLANT
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TABLE OF CONTENTS
PAGE
PRIOR OR RELATED APPEALS .......................................................................... vi
JURISDICTIONAL STATEMENT .......................................................................... 1
ISSUE ON APPEAL .................................................................................................. 1
SUMMARY OF THE ARGUMENT ........................................................................ 2
STATEMENT OF THE CASE .................................................................................. 2
STATEMENT OF FACTS ........................................................................................ 4
ARGUMENT ............................................................................................................. 7
I. STANDARD OF REVIEW ............................................................................. 7
II. THE DISTRICT COURT ERRED IN GRANTING PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION PURSUANT TO THEIR
FOURTEENTH AMENDMENT EQUAL PROTECTION CLAIM ............. 7
CONCLUSION ........................................................................................................36
STATEMENT REGARDING ORAL ARGUMENT .............................................38
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7) .................38
CERTIFICATE OF PRIVACY REDACTIONS .....................................................38
CERTIFICATE OF HARD COPY SUBMISSION ................................................38
CERTIFICATION OF DIGITAL SUBMISSION ...................................................38
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TABLE OF AUTHORITIES
Cases
Awad v. Ziriax,
670 F.3d 1111 (10th Cir. 2012) ........................................................................... 8
Bauer v. Lynch,
812 F.3d 340 (4th Cir. 2016) ............................................................................. 27
Buzzetti v. City of N.Y.,
140 F.3d 134 (2d Cir. 1998) .................................................................. 28, 29, 31
Buzzetti v. City of N.Y.,
1997 U.S. Dist. LEXIS 4383 (S.D. N.Y. 1997) ................................................ 17
C.T. v. State,
939 N.E.2d 626 (Ind. App. 2010) ................................................................ 29, 30
City of Albuquerque v. Sachs,
135 N.M. 578 (2004) ......................................................................................... 31
City of Albuquerque v. Sachs,
92 P.3d 24 (N.M. Ct. App. 2004) ...................................................................... 22
City of Jackson v. Lakeland Lounge,
688 So. 2d 742 (Miss. 1996) ....................................................................... 22, 29
City of Tucson v. Wolfe,
917 P.2d 706 (Ariz. Ct. App. 1995) .................................................................. 19
Craft v. Hodel,
683 F. Supp. 289 (D. Mass. 1988) .................................................. 10, 16, 21, 31
Craig v. Boren,
429 U.S. 190 (1976) .......................................................................................... 10
Dydyn v. Dep’t of Liquor Control,
531 A.2d 170 (Conn. App. Ct. 1987) ................................................................ 16
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Eckl v. Davis,
124 Cal. Rptr. 685 (1975) .................................................................................. 21
Eckl v. Davis,
51 Cal. App. 3d 831, 124 Cal. Rptr. 685 (1975) ............................................... 16
Fish v. Kobach,
840 F.3d 710 (10th Cir. 2016) ............................................................................. 7
G.G. v. Gloucester Cty. Sch. Bd.,
822 F.3d 709 (4th Cir. 2016) ............................................................................. 27
Hang On, Inc. v. City of Arlington,
65 F.3d 1248 (5th Cir. 1995) ............................................................................. 15
Heideman v. S. Salt Lake City,
348 F.3d 1182 (10th Cir. 2003) ..................................................................... 7, 34
J&B Soc. Club # 1 v. City of Mobile,
966 F. Supp. 1131 (S.D. Ala. 1996) ............................................................ 15, 19
J.E.B. v. Ala.,
511 U.S. 127 (1994) .................................................................................... 10, 30
Johnston v. Univ. of Pitt. of the Commonwealth Sys. of Higher Educ.,
97 F. Supp. 3d 657 (W.D. Pa. 2015) ................................................................. 27
Kikumura v. Hurley,
242 F.3d 950 (10th Cir. 2001) ......................................................................... 7, 8
M. v. Superior Court,
450 U.S. 464 (1981) .......................................................................................... 10
MJR'S Fare v. Dallas,
792 S.W.2d 569 (Tex. App.—Dallas 1990) ...................................................... 15
Miss. Univ. for Women v. Hogan,
458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982) ................................ 31
Moore v. Coffeyville,
1993 U.S. Dist. LEXIS 9705 (D. Kan. June 16, 1993) ..................................... 23
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Oham v. Aaron Corp.,
518 U.S. 12 (1986) ............................................................................................ 24
Parham v. Hughes,
441 U.S. 347 (1979) .......................................................................................... 11
People v. David,
152 Misc. 2d 66 (N.Y. Cnty. Ct. 1991) ............................................................. 17
Reed v. Reed,
404 U.S. 71 (1971) .............................................................................................. 9
SCFC ILC, Inc. v. VISA USA, Inc.,
936 F.2d 1096 (10th Cir. 1991) ......................................................................... 34
Seattle v. Buchanan,
584 P.2d 918 (Wash. 1978) ......................................................................... 18, 21
State v. Chiello,
1995 R.I. Super. LEXIS 135 (1995) .................................................................. 20
State v. Turner,
382 N.W.2d 252 (Minn. Ct. App. 1986) ..................................................... 16, 21
State v. Vogt,
775 A.2d 551 (N.J. Super. Ct. 2001) ..................................................... 19, 22, 32
Summum v. Pleasant Grove City,
483 F.3d 1044 (10th Cir. 2007) ........................................................................... 8
Tagami v. City of Chi.,
2015 U.S. Dist. LEXIS 90149 (N.D. Ill. July 10, 2015) ................................... 23
Tuan Anh Nguyen v. INS,
533 U.S. 53 (2001) ...................................................................................... 26, 37
United States v. Biocic,
928 F.2d 112 (4th Cir. 1991) ....................................................................... 20, 31
United States v. Biocic,
730 F. Supp. 1364 (D. Md. 1990) ..................................................................... 21
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United States v. Virginia,
518 U.S. 515 (1996) .................................................................... 9, 24-30, 32, 33
Watson v. Kan. City,
857 F.2d 690 (10th Cir. 1988) ......................................................... 11, 12, 13, 14
Ways v. City of Lincoln,
331 F.3d 596 (8th Cir. 2003) ....................................................................... 28, 31
Statutes and Other Authorities
28 U.S.C. § 261.2 ................................................................................................... 16
28 U.S.C. § 1331 ....................................................................................................... 1
28 U.S.C. § 1292(a) .................................................................................................. 1
36 C.F.R. § 7.67 ..................................................................................................... 16
36 C.F.R. § 7.87 ..................................................................................................... 16
36 C.F.R. § 261.2 ................................................................................................... 16
Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex
Discrimination Law,
85 N.Y.U. L. Rev. 83, 145 (2010) ..................................................................... 33
Fed. R. App. P. 32(a)(7) ......................................................................................... 38
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PRIOR OR RELATED APPEALS
Defendant-Appellant knows of no prior or related appeals.
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JURISDICTIONAL STATEMENT
Plaintiffs Free the Nipple – Fort Collins, Brittiany Hoagland, and Samantha
Six, filed this action in the United States District Court for the District of Colorado
against Defendant City of Fort Collins, Colorado. Plaintiffs brought claims for
violation of the First and Fourteenth Amendments to the United States Constitution
and the Equal Rights Amendment of the Colorado Constitution. Plaintiffs also filed
a Motion for Preliminary Injunction, seeking to enjoin enforcement of the ordinance
at issue during the pendency of the case. The District Court exercised federal
question jurisdiction pursuant to 28 U.S.C. § 1331.
On February 22, 2017, the District Court issued an Order granting Plaintiff’s
Motion for Preliminary Injunction based on their Fourteenth Amendment equal
protection claim, and enjoined the City from enforcing the ordinance pending a final
trial on Plaintiffs’ request for a permanent injunction. The Order did not finally
dispose of all claims in this matter, as it only decided the Motion for Preliminary
Injunction. However, this Court possesses appellate jurisdiction pursuant to 28
U.S.C. §1292(a), providing jurisdiction over appeals from orders granting
injunctions.
ISSUE ON APPEAL
Whether the District Court erred in granting Plaintiffs’ Motion for Preliminary
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Injunction and enjoining the enforcement of a City ordinance that restricts public
exposure of certain parts of female breasts in the City of Fort Collins.
SUMMARY OF THE ARGUMENT
The District Court erred in granting Plaintiffs’ Motion for Preliminary
Injunction. The District Court’s legal analysis of the Plaintiffs’ Fourteenth
Amendment Equal Protection Clause theory is fundamentally erroneous. The
District Court admitted its decision was against the overwhelming weight of federal
and state precedent addressing similar challenges to municipal ordinances
precluding public female toplessness and that it was “going out on [a] lonely limb.”
[ECF 53 at p.10]. This Court must reverse the District Court, overturn the
preliminary injunction, and allow the City of Fort Collins to enforce its entirely
reasonable, appropriate, and non-discriminatory ordinance.
STATEMENT OF THE CASE
Plaintiffs Free the Nipple – Fort Collins (“FTN”), Brittiany Hoagland, and
Samantha Six filed their Complaint and Jury Demand (the “Complaint”) against the
City of Fort Collins, Colorado (“the City”) on May 31, 2016. [ECF 1]. The
Complaint contains three claims for relief challenging Section 17-142 of the Fort
Collins Code of Ordinances, which limits, among other things, public exposure of
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women’s breasts (the “Ordinance”).1 Plaintiffs claim violation of the right to free
speech under the First Amendment, the right to equal protection under the
Fourteenth Amendment, and the right to equal protection under the Equal Rights
Amendment to the Colorado Constitution. Plaintiffs contemporaneously filed a
Motion for Preliminary Injunction, requesting an order enjoining the City from
enforcing the Ordinance. [ECF 2].
On August 2, 2016, the City filed a Motion to Dismiss, requesting dismissal
of each of Plaintiffs’ three claims for relief. [ECF 18]. On the same date, the City
filed its Response to Plaintiffs’ Motion for Preliminary Injunction. [ECF 19].
Following briefing on the Motion to Dismiss and the Motion for Preliminary
Injunction, [ECF 30, 31, 35], on October 20, 2016, the District Court issued an Order
granting in part and denying in part the Motion to Dismiss. [ECF 37]. The District
Court dismissed Plaintiff’s First Amendment claim with prejudice, but denied the
Motion to Dismiss with respect to the two equal protection claims. [See id. at p.14].
The City filed its Answer to the two remaining claims on November 4, 2016.
[ECF 38]. On December 19, 2016, the District Court held a hearing on the Motion
for Preliminary Injunction. [See Reporter’s Transcript, Motion for Preliminary
1 The Ordinance also prohibits the public exposure of the genitals and
buttocks of females and males ten years of age or older.
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Injunction, 12/19/2016, Appendix Volume 3, p. 153 (“Hearing Transcript”)]. The
parties each submitted hearing briefs in relation to the preliminary injunction
hearing. [ECF 47, 50, 51]. On February 22, 2017, the District Court issued its Order
granting the preliminary injunction and enjoining the City from enforcing the
Ordinance. [ECF 53]. The City now appeals.
STATEMENT OF FACTS
1. FTN is an unincorporated association of Colorado residents, the female
members of which wish to expose their breasts publicly in Fort Collins. [ECF 1, ¶
10]. The individual Plaintiffs are members of FTN. [ECF 1, ¶¶ 11-12].
2. Prior to October 20, 2015, Section 17-142 of the Fort Collins Code of
Ordinances provided: “No person shall knowingly appear in any public place in a
nude state of undress such that the genitals or buttocks of either sex or the breast or
breasts of a female are exposed.” [ECF 1, ¶ 18].
3. In response to a request from Plaintiff Brittiany Hoagland, the City
Council reviewed the prior version of the Ordinance and considered two options for
modifying it, one of which would keep the restriction on female toplessness but add
exceptions, and the other of which would remove any prohibition on female
toplessness. [ECF 1 at ¶25; ECF 19-1].
4. At the October 20, 2015, City Council meeting, the City Council heard
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public comment on the proposed revisions to the Ordinance, and the comments were
overwhelmingly in favor of maintaining a restriction on public toplessness for
women. [ECF 19-2].
5. The City Council also considered evidence of an on-line survey
conducted by the City Manager’s office in relation to the proposed modifications to
the Ordinance, and over 60% of the respondents were in favor of restricting female
toplessness. [ECF 19-2, 19-3].2
6. At the October 20, 2015, meeting, the City Council advanced
Ordinance No. 134, to modify Section 17-142 to clarify the restriction on female
toplessness and create an exception for breastfeeding, among other things. [ECF 1,
¶¶29-30].
7. Members of the City Council also received numerous phone calls and
email messages from members of the public expressing their opinions relating to the
proposed revisions to the Ordinance. [ECF 19-2 at pp.4, 87, 89, 92].
8. Among the concerns expressed by the public and by the City Council
in connection with the adoption of the amended Ordinance were concerns about
maintaining public order, parental rights to control children’s exposure to public
2 The survey was available to anyone with internet access and therefore was
not limited to Fort Collins residents.
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nudity, promoting public safety, advancing the quiet enjoyment of private property,
and the impact on businesses in the City of Fort Collins. [ECF 19-2, 19-3, 19-4;
Hearing Transcript].
9. At a meeting on November 3, 2015, the City Council took additional
comment on the proposed revisions to Section 17-142 and voted to adopt the version
that is at issue in this lawsuit. [ECF 1, ¶ 38; ECF 19-4].
10. The Ordinance as amended now reads:
No female who is ten (10) years of age or older shall knowingly appear
in any public place with her breast exposed below the top of the areola
and nipple while located: (1) in a public right-of-way, in an natural area,
recreation area or trail, or recreation center, in a public building, in a
public square, or while located in any other public place; or (2) on
private property if the person is in a place that can be viewed from the
ground level by another who is located on public property and who does
not take extraordinary steps, such as climbing a ladder or peering over
a screened fence, in order to achieve a point of vantage.
The revised Ordinance defines “public place” as follows:
[A] place in which the public or a substantial number of the public has
access, and includes but i[s] not limited to highways including
sidewalks, transportation facilities, school[s], places of amusement,
parks, playgrounds and the common areas of public and private
buildings and facilities, and shall not include any theater, concert hall,
museum, school or similar establishment to the extent the same is
serving as a performance venue.
[ECF ¶ 30; ECF 19-5].
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ARGUMENT
I. STANDARD OF REVIEW
This Court reviews a district court’s decision to grant a preliminary injunction
for abuse of discretion. Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016) (citing
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003)). “An abuse
of discretion occurs where a decision is premised on an erroneous conclusion of law
or where there is no rational basis in the evidence for the ruling.” Id. (citations and
internal quotations omitted). This Court reviews the district court’s factual findings
for clear error and its conclusions of law de novo. Id. (citing Heideman, 348 F.3d at
1188).
II. THE DISTRICT COURT ERRED IN GRANTING PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION PURSUANT TO THEIR
FOURTEENTH AMENDMENT EQUAL PROTECTION CLAIM
A. FACTORS APPLICABLE TO MOTIONS
FOR PRELIMINARY INJUNCTION
In reviewing a motion for a preliminary injunction, a court considers the
following four factors:
(1) a substantial likelihood of success on the merits of the case; (2)
irreparable injury to the movant if the preliminary injunction is denied;
(3) the threatened injury to the movant outweighs the injury to the other
party under the preliminary injunction; and (4) the injunction is not
adverse to the public interest.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). Where the requested relief
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would disturb the status quo, a “heightened burden requirement applies” and the
movant “must demonstrate not only that the four requirements for a preliminary
injunction are met but also that they weigh heavily and compellingly in his favor.”
Id. This type of injunction, as well as one that affords the movant all the relief she
could recover after a trial on the merits, is “disfavored” and therefore “must be more
closely scrutinized to assure that the exigencies of the case support the granting of a
remedy that is extraordinary even in the normal course.” Awad v. Ziriax, 670 F.3d
1111, 1125 (10th Cir. 2012) (quoting Summum v. Pleasant Grove City, 483 F.3d
1044, 1048-49 (10th Cir. 2007)). In such cases, “[a] district court may not grant a
preliminary injunction unless the moving party makes a strong showing both with
regard to the likelihood of success on the merits and with regard to the balance of
harms.” Id.
B. PLAINTIFFS DO NOT HAVE A SUBSTANTIAL
LIKELIHOOD OF SUCCEEDING ON THE MERITS
The District Court’s Order found Plaintiffs had a substantial likelihood of
succeeding on the merits of their equal protection claim under the Fourteenth
Amendment to the United States Constitution. [ECF 53 at p.10].3 The District Court
3 In light of its ruling on the federal claim, the District Court declined to
consider Plaintiffs’ claim under the Equal Rights Amendment of the Colorado
Constitution. [ECF 53 at p.10 n.4]. Accordingly, only the Plaintiffs’ Fourteenth
Amendment Equal Protection claim is before this Court on appeal.
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candidly admitted it was “going out on [a] lonely limb” by finding an equal
protection violation in an ordinance prohibiting only female toplessness, and by
rejecting the reasoning of the vast majority of courts finding no such violation. [ECF
53 at p.10]. The District Court’s ruling is founded on a fundamental
misunderstanding of the holding of United States v. Virginia, 518 U.S. 515 (1996),
as well as a misapprehension of the purpose and effect of the Ordinance, and must
therefore be overturned.
i. The Equal Protection Clause Permits Gender Based Distinctions
Where Men and Women are Not Similarly Situated
In applying the Equal Protection Clause, the Supreme Court recognizes “the
Fourteenth Amendment does not deny to States the power to treat different classes
of persons in different ways,” but instead prohibits only “the power to legislate that
different treatment be accorded to persons placed by a statute into different classes
on the basis of criteria wholly unrelated to the objective of that statute.” Reed v.
Reed, 404 U.S. 71, 75-76 (1971) (citations omitted). “A classification must be
reasonable, not arbitrary, and must rest upon some ground of difference having a fair
and substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike.” Id. at 76 (citation and internal quotation
omitted).
Where a classification is based on gender, it withstands an equal protection
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challenge if it serves important governmental objectives and is substantially related
to achievement of those objectives. Craig v. Boren, 429 U.S. 190, 197 (1976).
Topless bans that apply to women but not to men are reviewed under this equal
protection standard. See Craft v. Hodel, 683 F. Supp. 289, 299 (D. Mass. 1988)
(because federal regulation permitting only males to appear shirtless in national
parks distinguished between males and females, it must serve important government
objectives and be substantially related to achievement of those objectives) (citing
Craig, 429 U.S. at 190). Because the Equal Protection Clause does not require things
which are different in fact to be treated in law as though they were the same, the
Supreme Court has consistently upheld statutes “where the gender classification is
not invidious, but rather realistically reflects the fact that the sexes are not similarly
situated in certain circumstances.” M. v. Superior Court, 450 U.S. 464, 469 (1981)
(plurality opinion); see also id. at 481 (“[T]he Constitution surely does not require a
State to pretend that demonstrable differences between men and women do not really
exist.”) (Stewart, J., concurring).
The fundamental requirement of any cognizable gender discrimination claim
is invidious discrimination, not simply a classification on the basis of gender. See
J.E.B. v. Ala. ex. rel. T.B., 511 U.S. 127, 136-37 (1994) (exercise of preemptory
challenges on the basis of gender precluded under the Equal Protection Clause based
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on “our asserted commitment to eradicate invidious discrimination from the
courtroom”); Parham v. Hughes, 441 U.S. 347, 351 (1979) (“In the absence of
invidious discrimination, however, a court is not free under the aegis of the Equal
Protection Clause to substitute its judgment for the will of the people of a State as
expressed in the laws passed by their popularly elected legislature.”); Watson v.
Kansas City, 857 F.2d 690, 696-97 (10th Cir. 1988) (“In Feeney, the plaintiff
challenged a veteran’s preference policy which favored men at a rate of ninety-eight
percent. Notwithstanding such an adverse impact on women, the Court rejected the
plaintiff’s gender-based discrimination claim because she could not show that the
classification was adopted to purposefully discriminate against women. Here we
have no evidence of either adverse impact or discriminatory purpose.”) (citations
omitted).
ii. There Are Inherent Biological Differences
Between Male and Female Breasts
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. [ECF47-1 (Breast,
https://en.wikipedia.org/w/index.php?title=Breast&oldid=754681966 (last visited
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Dec. 13, 2016) (citations omitted throughout)].4 Female 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 genitalia. Id.
Wikipedia’s Breast article contains this 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.’ 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
4 Notably, this article entitled “Breast” relates solely to female breasts, and
there is no separate article from this source relating to the male breast. See id.
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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 décolleté (plunging neckline) gowns and blouses which
show cleavage.
Id. Therefore, the sexualization of women’s breasts is not solely a product of societal
norms, but of biology.
Research has demonstrated that after puberty the tactile sensitivity of all areas
of a woman’s breasts is significantly greater than a man’s. [ECF 47-2 (J.E. Robinson
& R.V. Short, Changes in breast sensitivity at puberty, during the menstrual cycle,
and at parturition, British Medical Journal (1977) 1, 1188-1191)]. 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
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breast, but there was no discussion of stimulation of the male breast. [ECF 47-3
(Data from Alfred Kinsey’s studies, Kinsey Institute at Indiana University,
http://www.indiana.edu/~kinsey/research/ak-data.html#foreplay (last visited
December 15, 2016))].
In the City Council hearing relating to the proposed revision of the Ordinance,
testimony was taken 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. [ECF 47-4 (excerpts from Fort Collins City Council Meeting,
10/20/2015, Agenda Item 18, at 11:21-12:6, 12:24-13:3)]. 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].
iii. Topless Bans Applicable Only to Women Recognize the
Inherent Differences Between Male and Female Breasts
These physiological and sexual distinctions between male and female breasts
provide either implicit or explicit support for the myriad decisions upholding female
toplessness bans in the face of equal protection challenges. In one of those cases, the
municipal defendant presented evidence of such distinctions, including a physician’s
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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);
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 breast, is a
mammary gland, in rejecting an equal protection challenge to a state law defining
nudity to include only the female breast).
However, it does not appear necessary to have expert testimony to
demonstrate the inherent biological differences between males and females in
upholding a topless ban applicable only to women, as recognized by numerous
federal and state courts across the country. See, e.g., J&B Social Club # 1 v. City of
Mobile, 966 F. Supp. 1131, 1139 (S.D. Ala. 1996) (“It is apparent to the naked eye,
and this court takes judicial notice, that female breasts are quite often different from
male ones. In this regard, men and women are not ‘similarly situated,’ and the
ordinance therefore raises no impermissible gender classification.”); Hang On, Inc.,
65 F.3d at 1256-57 (describing trial testimony regarding the difference between male
and female breasts, but noting: “Courts need no evidence to prove self-evident truths
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about the human condition–such as water is wet. Nor should they tarry long with
such foolishness and, in the process, trivialize constitutional values intrinsic to our
society.”); Craft, 683 F. Supp. at 299-300 (rejecting argument that regulation
reflected archaic and stereotypic notions and perpetuated cultural stereotypes
equating the female breast with sexual fantasies, and instead holding regulation
“simply recognizes a physical difference between the sexes which has implications
for the moral and aesthetic sensitivities of a substantial majority of the country”)5;
Dydyn v. Department of Liquor Control, 531 A.2d 170, 175 (Conn. App. 1987)
(“Although the plaintiffs attempt to blur the clear distinction, there can be no doubt
that in our society female breasts, unlike male breasts, constitute an erogenous zone
and are commonly associated with sexual arousal.”); Turner, 382 N.W.2d at 255-56
(rejecting claim that prohibition on exposure of female breasts creates an
unconstitutional gender-based classification, in light of differences between male
and female breasts); Eckl v. Davis, 51 Cal. App. 3d 831, 124 Cal. Rptr. 685, 696
(1975) (“Nature, not the legislative body, created the distinction between that portion
5 Craft involved a regulation applicable to a national park, see 36 C.F.R.
§7.67, and a finding that the Ordinance constitutes an equal protection violation
would implicate other federal regulations relating to public nudity on federal lands.
See, e.g., 36 C.F.R. §7.87, 36 C.F.R. §261.2.
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of a woman’s body and that of a man’s torso.”).6
Additionally, courts have recognized that regardless of the physical
differences between the sexes, our society continues to apply different standards to
male and female breasts, and laws recognizing those standards do not violate the
Constitution. See, e.g., Buzzetti v. City of New York, 1997 U.S. Dist. LEXIS 4383,
*16-17 (S.D.N.Y. April 8, 1997) (“One does not have to be either a psychologist or
a sociologist to recognize that, if it were widely known that ten topless women were
walking down Park Avenue and ten topless men were walking down Madison
Avenue, the effect on the traffic on Park Avenue would be substantially greater than
on Madison Avenue. . . . [E]ven if we accept arguendo the view of plaintiffs’ expert
that the male and female breast are equally erotic, that does not change the fact that
in our culture the public display of female breasts will have far different secondary
effects than the public display of male breasts. Rightly or wrongly, our society
continues to recognize a fundamental difference between the male and female
6 In People v. David, 152 Misc. 2d 66, 68 (N.Y. County Ct. 1991), the court
upheld an equal protection challenge to a public nudity law, finding “[m]ale and
female breasts are physiologically similar except for lactation capability.” The City
as unable to locate any other authority adopting this reasoning, which is inconsistent
with the overwhelming weight of authority presented herein. Indeed, other than the
District Court in this case, this New York County Court decision represents the only
decision striking down a female toplessness ban on equal protection grounds known
to counsel for the City.
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breast.”); City of Seattle v. Buchanan, 584 P.2d 918, 920 (Wash. 1978) (“We are
unable to agree that the legislative body could only have been interested in the size
or shape of female breasts when it included them among the parts of the human body
which should not be exposed in public. It is manifest from a reading of the section
as a whole that the City Council was concerned with those body parts and functions
which, according to society’s common sense of decency, should be kept private.
These include the eliminative functions and the procreative functions. With respect
to the latter, it was found to be in the public interest to order concealed, in addition
to the genitals, the female breasts, which, unlike male breasts, constitute an
erogenous zone and are commonly associated with sexual arousal.”).
iv. Topless Bans Applicable Only to Women are Substantially
Related to an Important Government Interest
At the City Council hearings relating to the revised Ordinance, the Council
heard from dozens of citizens about the myriad concerns they had with permitting
adult females to go topless in public without restriction. [ECF 19-2, 19-3]. At the
preliminary injunction hearing, the City presented evidence of the various issues
considered by the City in proposing revisions to the Ordinance and by the decision
makers in voting on the proposed revisions. [(Appendix cite to PI hearing
transcript)]. The City urges this Court to review the entire transcript of the City
Council hearing and the preliminary injunction hearing to gain a full and complete
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understanding of the governmental issues at stake, but for purposes of this brief those
issues will be summarized as maintaining public order, supporting parental rights to
control children’s exposure to public nudity, promoting public safety, advancing the
quiet enjoyment of private property, and the impact on businesses in the City of Fort
Collins.7
The courts have regularly and consistently found, in light of the differences
between male and female breasts, that prohibition of exposure of only female breasts
is substantially related to an important government interest. See, e.g., State v. Vogt,
775 A.2d 551, 557 (N.J. App. Div. 2001) (“Restrictions on exposure of the female
breast are supported by the important governmental interest in safeguarding the
public’s moral sensibilities, and this ordinance is substantially related to that
interest.”); J&B Social Club, 966 F. Supp. at 1139 (“Assuming, however, that
[distinction between male and female breasts in nudity ordinance] is ‘gender-based’
for equal protection purposes, the court finds that the distinction is substantially
related to an important governmental interest.”); City of Tucson v. Wolfe, 917 P.2d
7 Significantly, Plaintiffs nowhere argue that complete nudity should be
permitted for either or both sexes, and they do not challenge that portion of the
Ordinance prohibiting exposure of the genitals and buttocks of both males and
females. If there is a legitimate public interest in barring public exposure of human
genitalia, and if in fact female breasts have a sexual function that male breasts do
not, then the legitimate governmental interest must necessarily extend to public
exposure to female breasts.
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706, 707 (Ariz. App. 1995) (“Other jurisdictions considering equal protection
challenges to similar legislation have rejected them. Likewise, we believe that the
ordinance at issue here encompasses more than mere sexual stereotyping and . . .
given the community standard for decency expressed by the community’s
legislatures both local and statewide, the ordinance is substantially related to an
important governmental interest in regulating the public decency and order.”)
(citations and internal quotations omitted); State v. Chiello, 1995 R.I. Super. LEXIS
135, *21-22 (R.I. Super. Ct. 1995) (“This Court, like the others which have
examined the same issue, finds that there is no equal protection problem presented
by the provision in the West Warwick ordinance which prohibits the displaying of
women’s breasts. In so holding, the Court recognizes that in certain circumstances
men and women are not similarly situated, and that the gender classification
contained in the West Warwick ordinance is substantially related to these differences
which are inherent between men and women.”) (citations and internal quotations
omitted); United States v. Biocic, 928 F.2d 112, 115-116 (4th Cir. 1991) (“The
important government interest is the widely recognized one of protecting the moral
sensibilities of that substantial segment of society that still does not want to be
exposed willy-nilly to public displays of various portions of their fellow citizens’
anatomies that traditionally in this society have been regarded as erogenous zones.
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These still include (whether justifiably or not in the eyes of all) the female, but not
the male, breast.”); United States v. Biocic, 730 F. Supp. 1364, 1366 (D. Md. 1990)
(“In the present case, this Court concludes that the regulation of the public exposure
of the female breast, given the historical approach to the subject and the objectives
of the community in protecting its moral values, is substantially related to an
important governmental interest.”); Craft, 683 F. Supp. at 300-01 (because
community standards consider female breasts to be an intimate part of the human
body, the exposure of which constitutes nudity, gender distinction is substantially
related to the government objective of protecting the public from invasions of its
sensibilities); Turner, 382 N.W.2d at 256 (nudity ordinance serves important
governmental objectives of controlling public nudity and preserving societal norms,
and a gender classification based on “clear differences between the sexes” is
substantially related to achieving those objectives); Buchanan, 584 P.2d at 921
(“There being such a difference between the breasts of males and females (however
undiscernible to the naked eye of some), and that difference having a reasonable
relationship to the legitimate legislative purpose which it serves, the ordinance does
not deny equality of rights or impose unequal responsibilities on women. It applies
alike to men and women, requiring both to cover those parts of their bodies which
are intimately associated with the procreation function.”); Eckl, 124 Cal. Rptr. at
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696 (“Unlike the situation with respect to men, nudity in the case of women is
commonly understood to include the uncovering of the breasts. Consequently, in
proscribing nudity on the part of women it was necessary to include express
reference to that area of the body. The classification is reasonable, not arbitrary, and
rests upon a ground of difference having a fair and substantial relation to the object
of the legislation, so that all persons similarly circumstanced are treated alike.”).
v. Courts Reviewing This Issue Have Overwhelmingly Upheld
Nudity Ordinances Applicable to Female, But Not Male, Breasts
Throughout the United States, claims of equal protection violation premised
on nudity bans covering female breasts, but not male breasts, have routinely and
consistently been rejected. See, e.g., City of Albuquerque v. Sachs, 92 P.3d 24, 28
(N.M. App. 2004) (cases decided throughout the United States “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 or state
equal protection clauses); State v. Vogt, 775 A.2d 551, 557 (N.J. App. Div. 2001)
(“This issue has been litigated often elsewhere, the overwhelming majority of cases
holding that laws banning female (but not male) toplessness do not violate federal
or state equal protection guidelines.”); City of Jackson v. Lakeland Lounge, 688
So. 2d 742, 751 (Miss. 1996) (“The federal courts on many occasions have held that
denying females the right to expose their breasts, but not males, did not violate either
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the First Amendment or the Equal Protection Clause.”); Moore v. Coffeyville, 1993
U.S. Dist. LEXIS 9705, *17 (D. Kan. June 16, 1993) (“Legislation which prohibits
the display of the naked breasts of women, while allowing men to do so, have
frequently been challenged on equal protection grounds. And that legislation has
been universally upheld.”).
Notably, even in a recent case cited by Plaintiffs in the Complaint, [ECF 1, ¶
23], the United States District Court for the Northern District of Illinois granted a
motion to dismiss directed at the plaintiff’s equal protection claim based on the
applicability of a nudity ordinance to only female breasts. See Tagami v. City of
Chicago, 2015 U.S. Dist. LEXIS 90149, *9 (N.D. Ill. July 10, 2015). There, the
court found: “Tagami’s equal protection claim fails because, while the Ordinance
permits men but not women to appear bare-chested in public, Tagami fails to allege
how this distinction places artificial constraints on a woman’s opportunity, or how
the Ordinance is used to create or perpetuate the legal, social, and economic
inferiority of women.” (Citations and internal quotations omitted).8
8 Tagami is presently on appeal to the Seventh Circuit, and briefing and oral
argument have been completed but to date an opinion has not issued. See Tagami
v. City of Chicago, Seventh Circuit Case No. 16-1441.
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vi. The Supreme Court’s Decision in VMI Does Not
Support an Equal Protection Violation Here
In denying the City’s Motion to Dismiss with respect to the equal protection
claim, the District Court interpreted the Supreme Court’s decision in United States
v. Virginia, 518 U.S. 515 (1996) (“VMI”), to permit 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 VMI, 518 U.S. at 531)]. However, the holding of VMI is not so limited and
does not actually support the District Court’s analysis or conclusion. The particular
passage at issue states:
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.
VMI, 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
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classification can only be used to compensate women for prior inequities.9
To the contrary, the actual holding of VMI 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 same
standard applied in the cases discussed above. The Supreme Court in VMI expressly
acknowledged that sex is not a proscribed classification, and while it held inherent
differences are no longer accepted as a 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 VMI the Supreme Court has upheld a sex-based distinction
having no relation to compensation for prior inequities in the face of an equal
9 Although VMI 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.
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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
[VMI], 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’).
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Id. 10 In this case, there are enduring physical differences between men and women
supporting the Ordinance’s distinction between male and female toplessness, as
discussed above.
Contrary to the District Court’s assumption that VMI altered the analysis of
equal protection claims relating to female only topless bans, [ECF 37 at p.13 n.6],
10 In other contexts, courts citing VMI 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., 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 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.”).
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federal and state courts applying VMI continue to reject equal protection challenges
to such laws. For example, in Ways v. City of Lincoln, 331 F.3d 596, 600 (8th Cir.
2003), the Eighth Circuit applied VMI 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 VMI
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 VMI’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 VMI, 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
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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
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 Second Circuit 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, VMI, 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
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of Appeals of Indiana applied VMI 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 VMI, 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 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 VMI, 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.
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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, 92 P.2d 24 (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 28. Finding such cases “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. The court
observed:
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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. at 29.
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 challenge to a
conviction for nudity in a public place. The court determined that 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 VMI’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 is exceedingly persuasive.” Id. at 559.
By contrast, neither the District Court nor Plaintiffs cited a single case
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overturning a females-only topless ban as a violation of the right to equal protection
as a result of VMI. Nor does the District Court’s reliance on a 2010 law review
article discussing the evolution of the Supreme Court’s opinions relating to sex-role
stereotyping support a determination of a potential equal protection violation here.
[ECF 37 at p.12 (citing Cary Franklin, The Anti-Stereotyping Principle in
Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 145 (2010))]. The
cited article discussed the Supreme Court’s eventual rejection of laws that perpetuate
the stereotyped notion of men as breadwinners and women as homemakers, thereby
limiting women’s opportunities to engage in pursuits outside of the home. [See id.]
However, the Ordinance does nothing to eliminate women’s abilities to pursue a
career or any other economic opportunity. In fact, the individual Plaintiffs expressly
acknowledged they suffered no economic disadvantage as a result of being unable
to go topless in public in the City of Fort Collins. [See Hearing Transcript at 32:5-
34:4; 73:10-74:16]. Contrary to Plaintiffs’ bald proclamation, the Ordinance does
nothing to “create or perpetuate the legal, social, and economic inferiority of
women.” [ECF 31 at p.12 (quoting VMI, 518 U.S. at 534]. In short, the Ordinance
does not advance the type of sex-role stereotyping discussed in the Franklin article
and the VMI case and the District Court’s Order incorrectly relied on this authority.
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C. PLAINTIFFS WILL NOT SUFFER IRREPARABLE INJURY
IF THE PRELIMINARY INJUNCTION IS OVERTURNED
Initially, if should be noted that “the movant will ordinarily find it difficult to
meet its heavy burden of showing that the four factors, on balance, weigh heavily
and compellingly in its favor, without showing a substantial likelihood of success on
the merits.” SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1101 n.11 (10th
Cir. 1991). Because Plaintiffs cannot establish a substantial likelihood of success on
the merits, for all of the reasons discussed above, the remaining three factors wane
in significance. Nevertheless, Plaintiffs also have not established that these factors
support a preliminary injunction.
Under the first factor, to constitute irreparable harm, an injury must be certain,
great, actual “and not theoretical.” Heideman v. S. Salt Lake City, 348 F.3d 1182,
1189 (10th Cir. 2003). Plaintiffs have not demonstrated they will suffer any great,
actual, and irreparable injury if they are unable to go topless in Fort Collins during
the pendency of this matter. Instead, Plaintiffs proclaim irreparable harm must
automatically be found if there is an alleged constitutional violation, [ECF 2 at p.16],
but they cite only First Amendment cases in support of this proposition.11 By
11 Plaintiffs failed to address these three factors at all in their Reply to
Defendant’s Response to Plaintiff’s Motion for Preliminary Injunction, [ECF 30],
demonstrating agreement with the City that it is the first prong that is controlling
here.
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contrast, while the District Court actually cited cases finding irreparable injury in
the equal protection context, it cited no cases finding irreparable injury in enforcing
a prohibition on public nudity. [ECF 53 at pp.10-11]. Moreover, both Plaintiffs and
the District Court rely on the existence of a viable claim for a constitutional violation,
and because Plaintiffs are unlikely to succeed on the merits, by their reasoning this
prong must also fail.
D. THE THREATENED INJURY TO PLAINTIFFS DOES
NOT OUTWEIGH THE INJURY TO THE CITY
Similarly, under the third preliminary injunction factor, Plaintiffs cite First
Amendment case law, and proclaim the City has no significant interest in enforcing
the Ordinance “because it is likely unconstitutional.” [ECF 2 at p.17]. Plaintiffs do
not attempt to explain how any injury they might sustain from being required to wait
to bare their breasts in public until after this matter is concluded outweighs the City’s
interest in maintaining a law that was supported by the majority of its citizens and
unanimously adopted by its City Council. [See ECF 19 at pp.28-30]. Further, by their
own logic, a finding that the Ordinance is constitutional would cut against this factor.
E. THE INJUNCTION IS ADVERSE TO THE PUBLIC INTEREST
Under the fourth factor, Plaintiffs again invoke case law from the First
Amendment context, [ECF 2 at pp.17-18], and fail to explain how restricting
Plaintiffs from baring their breasts in public until this matter can be tried is adverse
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36
to the public interest.12 By contrast, the City explained how being prevented from
implementing an Ordinance subject to extensive public comment, enacted
unanimously by its City Council members, and on its face not unconstitutional
would be adverse to the public interest. [ECF 19 at pp.28-30]. Further, Plaintiffs’
continued reliance on the claimed unconstitutionality of the Ordinance once again
weighs against their argument should this Court find the Ordinance to be
constitutional.
In sum, each of the factors relating to a motion for preliminary injunction, and
in particular the most significant factor of likelihood of success on the merits, weighs
against the District Court’s issuance of a preliminary injunction in this matter, and
as a result the District Court’s Order should be overturned by this Court.
CONCLUSION
As the Supreme Court observed, “[t]o fail to acknowledge even our most basic
biological differences . . . 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
12 In this context it is worth noting again that the District Court granted the
City’s Motion to Dismiss the Plaintiffs’ First Amendment claim, [ECF 37 at p.14],,
rendering the Plaintiffs’ continued reliance on First Amendment law to support their
claims entirely inapposite.
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37
distinction embodied in the statutory scheme here at issue is not marked by
misconception and prejudice, nor does it show disrespect for either class.” Nguyen,
533 U.S. at 73. Plaintiffs here urge this Court to disregard the most basic biological
differences between the breasts of men and women and instead mechanistically
classify the Ordinance’s gender distinction as a sex stereotype. Contrary to
Plaintiffs’ inflammatory characterization and rhetoric, the Ordinance is not marked
by misconception or prejudice and does not show disrespect for women. The
Ordinance does not constitute invidious discrimination on the basis of a patriarchal
attitude. The difference between men’s and women’s breasts is a real biological one,
and the Equal Protection Clause of the Fourteenth Amendment does not forbid cities
and states from acknowledging this difference in their public nudity laws, as the
overwhelming majority of federal and state courts have found.
As a result, Defendant City of Fort Collins, Colorado, respectfully requests
that this Court reverse the District Court’s Order granting Plaintiffs’ Motion for
Preliminary Injunction, hold that Plaintiffs can state no claim for violation of their
right to equal protection under either the federal or state constitutions, dismiss the
Plaintiffs’ equal protection claims in their entirety with prejudice, and enter all such
additional relief as this Court deems just and appropriate.
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STATEMENT REGARDING ORAL ARGUMENT
Defendant-Appellant City of Fort Collins believes oral argument may be
helpful to this Court in evaluating this appeal.
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)
The undersigned hereby certifies this Opening Brief is proportionally spaced
and is printed in the Font Times Roman with a point size 14 and contains 9,075
words. I relied on my word processor (Office 2013) to obtain the count. This word
count excludes those sections not appropriately included in the word count pursuant
to Fed.R.App.P.32(a)(7)(B)(iii).
CERTIFICATE OF PRIVACY REDACTIONS
The undersigned hereby certifies this Opening Brief contains all required
privacy redactions pursuant to 10th Cir. R. 25.5.
CERTIFICATE OF HARD COPY SUBMISSION
The undersigned hereby certifies the hard copies of this Opening Brief
submitted to the Court are exact copies of the version submitted electronically.
CERTIFICATION OF DIGITAL SUBMISSION
The undersigned hereby certifies this document is submitted in Digital PDF
and has been scanned for viruses with Sophos End Point Security (updated daily),
and is free of viruses.
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39
Respectfully submitted this 19th day of July, 2017.
s/Gillian Dale
Andrew D. Ringel, Esq.
Gillian Dale, Esq.
Christina S. Gunn, Esq.
HALL & EVANS, L.L.C.
1001 17th 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-
APPELLANT CITY OF FORT
COLLINS, COLORADO
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40
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 19th day of July, 2017, I electronically filed
the foregoing OPENING BRIEF using the CM/ECF system which will send
notification of such filing to the following e-mail address:
David A. Lane, Esq.
Andrew McNulty, Esq.
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, #400
Denver, CO 80202
dlane@kln-law.com
amcnulty@kln-law.com
s/Denise Gutierrez, Secretary to
Gillian Dale, Esq.
HALL & EVANS, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202-2052
Phone: (303) 628-3300
Fax: (303) 628-3368
daleg@hallevans.com
ATTORNEYS FOR DEFENDANTS-
APPELLANTS
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