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Ocean City is one step closer to resolving the lawsuit challenging a ban on female toplessness after U.S. District Court Chief Judge James K. Bredar denied a preliminary injunction request from the plaintiff last Thursday.

Mayor Meehan testifies in Baltimore, says not much  support for bare breasts

(Dec. 28, 2018) Ocean City moved closer to resolving the lawsuit challenging a ban on female toplessness after U.S. District Court Chief Judge James K. Bredar denied a preliminary injunction request from the plaintiff last Thursday.

The decision rejected a request made in July by civil rights attorney Devon Jacob, representing Eastern Shore resident Chelsea Eline and four other plaintiffs, which sought to suspend the city’s June 2017 ordinance prohibiting female toplessness pending the outcome of a lawsuit filed in January.

The issue began in 2016 when Eline, formerly Chelsea Covington, wrote to then-Worcester County State’s Attorney Beau Oglesby requesting clarity about the legality of female bare-chestedness in public places across the state.

Last summer, as Oglesby awaited a legal opinion from the Maryland Attorney General’s office, the topic gained national media attention after a departmental memo from beach patrol Capt. Butch Arbin came to light instructing staff to document, but not take action, if alerted to women sunbathing topless.

In response to that publicity, the City Council last June passed an emergency ordinance prohibiting females from publicly baring their breasts within the city limits of Ocean City. Violations of the municipal infraction are subject to a fine of up to $1,000.

In the 11-page decision last week, the court concurred with legal opinion in an earlier case, United States v. Biocic 1991, which concluded there was a discernable difference between the female and male breasts, “whether justifiably or not in the eyes of all.”

The Biocic case involved a woman cited for violating a US Fish and Wildlife regulation prohibiting any act of indecency as defined by state or local law on any national wildlife refuge. In that instance the court ruled a public nudity prohibition in Accomack County, Virginia, did not violate the equal protection clause in the U.S. Constitution, which was later upheld by the Fourth Circuit Court of Appeals in Richmond.

Testifying for the resort on Dec. 7 in U.S. District Court in Baltimore were Mayor Rick Meehan, Councilwoman Mary Knight, City Clerk Diana Chavis and Melanie Pursel, Ocean City Chamber of Commerce CEO/president.

In its August motion, Bredar characterized the Biocic decision as assuming, without concluding, a distinction based upon anatomical differences between male and female is gender-based for equal protection analysis purposes, while also opining gender distinctions were substantially related to an important government interest and therefore does not deny equal protection.

Bredar characterized the Ocean City witnesses as, “accurate barometers of public sensibilities,” who were, “equipped to, ‘take the pulse,’ of the community.”

On Dec. 7, Meehan, who testified city government’s priorities are public safety and tourism, said national media coverage of the issue resulted in a flood of emails and phone calls expressing opposition to toplessness.

Meehan said numerous nonresident property owners threatened to sell, with others contemplating cancelling family vacations, if toplessness were permitted.

Councilwoman Mary Knight testified that from her perspective Ocean City’s ordinance restricting public nudity accurately reflects the sensibilities of residents and visitors.

Knight and Meehan both said they had not heard a single voice in support of allowing bare breasted females on the beach.

Jacob called one expert witness, Dr. Debby Herbenick, professor Indiana University School of Public Health, whose areas of expertise are sexual health and gender issues.

Herbenick, while highlighting past involvement with roughly a dozen nationwide studies in the area of human sexuality, told the court a comparable approach was not taken regarding the sensibilities of Ocean City residents or visitors.

In the motion, Bredar said Herbenick’s arguments were not persuasive to the court.

“Instead of her testifying as to what Ocean City’s citizens’ public sensibilities are, she testified as to what she thought they should be,” he wrote.

Bredar also said the decision does not mean the public sensibilities recognized today will always be regarded as appropriate, but, for now, the Court has seen no evidence that the public sensibilities are not what Ocean City’s representatives say they are in the ordinance

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