Women seek legal grounds to sunbathe bare chested, OC officials firmly opposed
(July 24, 2020) Ocean City officials have another court date pending in the years’-long lawsuit brought by female toplessness advocates who are appealing the U.S. District Court’s recent ruling that upheld the resort’s ordinance prohibiting bare breasts on the beach.
Championing the idea that women have the same rights as men regarding chest exposure in public, Chelsea Eline, along with co-plaintiffs Megan Bryant, Rose MacGregor, Christine Coleman, and Angela Urban, filed suit against Ocean City officials in January 2018.
The topic was raised in August 2016 after Eline informed the Worcester County State’s Attorney Office and the OC Police of her intentions to sunbathe topless on the beach.
In June 2017, Ocean City officials adopted an emergency ordinance to preserve the “family-oriented character and quality of Ocean City and its beaches, and to protect the sensibilities of Ocean City’s residents and visitors.”
The rationale for the ordinance was that while some may not take offense with female toplessness, it remains unpalatable to larger society.
Attorney Bruce Bright, representing Ocean City, said the U.S. District Court issues trial level rulings that can be appealed to Federal Appellate Court.
“The U.S. District Court … made a ruling in the case granting our motion for summary judgment,” he said. “Within 30 days the plaintiffs have an automatic right of appeal to Fourth Circuit Court of Appeals, which is the first level of federal appellate appeal.”
In April, U.S. District Court Judge James Bredar rejected the plaintiffs’ contention that prohibiting females, but not males, from publicly displaying their breasts is a violation of the Constitution’s Equal Protection Clause and Article 46 of the Maryland Declaration of Rights.
“He decided, first of all and most basically, that the ordinance is constitutional and does not violate any provisions of the Constitution,” he said.
In his decision Judge Bredar wrote, “laws may acknowledge the physical differences between men and women, so long as such gender-based classifications do not ‘create or perpetuate the legal, social, and economic inferiority of women.’”
Bright said Bredar, who serves as Chief Judge of the U.S. District Court in Maryland, also made evidentiary rulings concerning testimony provided by Ocean City Mayor Rick Meehan and Councilwoman Mary Knight.
“What the plaintiffs’ attorney did at the summary judgement stage in the trial court, he argued that their testimony shouldn’t be considered because … they weren’t qualified to testify as experts on any particular subject that was relevant to the case,” he said.
By contrast, Bright had contended both Meehan and Knight were not proffered as academic experts.
“They weren’t testifying as experts, they were testifying as duly elected officials who are charged with the duty and responsibility, in part on certain matters, to determine where the public stands,” he said.
Bright said the trial court concurred that as elected officials their perspective held validity.
“They testified as to what was their view of the public sensibilities were on this issue,” he said.
In addition to taking issue with the court’s finding that Meehan and Knight were qualified witnesses, the plaintiffs also contend that the U.S. District Court “abused its discretion” in rejecting their expert, Indiana University School of Public Health Professor Debby Herbenick.
After filing paperwork with the Fourth Circuit on May 7, last Tuesday plaintiffs Attorney Devon Jacob submitted an appellate brief.
“They noted their appeal in a timely manner back in May,” he said. “What they filed [on July 14] was their appellate brief.”
Bright said with appeal arguments now advanced, Ocean City has until Aug. 13 to respond.
“We have to file a response brief and then there will be oral arguments in front of the Fourth Circuit thereafter,” he said. “It will be a three-judge panel that hears the case.”