Ocean City Topless Ban For Women Questioned In Federal Court

OCEAN CITY, MD — Does Ocean City's ordinance banning topless sunbathing by women protect "public sensibilities," or have standards evolved and it's no big deal?

A three-judge panel for the U.S. Court of Appeals for the 4th Circuit heard arguments on that dilemma this week, and it's the heart of a four-year lawsuit against the community.

Ocean City's leaders outlawed bare-chested women in 2017 as a way to ensure the resort town retains a family-friendly appearance, and the measure was soon taken to court. A ruling last year in the lawsuit filed by five women upheld the city's action. A federal judge in Baltimore said the city council was qualified and legally able to decide the public sensibilities of its residents and visitors.

Elected officials in the Eastern Shore mecca have the legal right to ban topless women from sunbathing on the town's beaches, the Maryland Attorney General's Office said after the city council enacted the measure.

Two of the three judges who heard arguments in the case Wednesday had questions for attorneys, and seemed to have differing opinions, The Washington Post reported.

Chief Judge Roger L. Gregory asked about the scope of public concern over topless beachgoers and how many complaint calls local officials received about the topic. Public acceptance of behavior and standards changes as time passes, he said.

“We’re not in the same Neanderthal-type environment,” Gregory said after he noted that laws making interracial and same-sex relationships illegal have been struck down over the years.

Judge A. Marvin Quattlebaum Jr. asked what weight the views of Ocean City residents should carry, the Post reported. “We may think it’s good or bad, but the question is what are the moral sensibilities?” Quattlebaum said.

The third judge on the panel, Barbara Milano Keenan, did not ask a question during oral arguments, the newspaper said.

Currently, the ordinance makes public nudity a municipal infraction that carries a $1,000 fine. Ocean City's Beach Patrol enforces the regulation.

Key Points From 2020 Court Case

U.S. District Court Judge James K. Bredar ruled in April 2020 in favor of Ocean City leaders as being within their rights to ban topless women at the busy beach resort. Attorneys for a group of five women had sued to overturn the topless ban, which they called discriminatory. Court documents argued the nudity statute "codifies longstanding discriminatory and sexist ideology in which women are viewed as inherently sexual objects."

But Bredar said "[i]t is a part of our democratic culture that elected representatives can, and do, speak for the public.

"Elected representatives best speak for and represent the views of their constituent communities because, as the testimony of Mayor (Rick) Meehan and Council (Secretary Mary) Knight demonstrates, community members go to their elected representatives with their fears and hopes for their community," Bredar wrote in his opinion. "The elected representatives then take action to reflect those concerns, as occurred here with the passing of the ordinance."

(See the full text of the district court judge's 2020 decision at the bottom of this story.)

City Council members voted in June 2017 to ban topless women from public spaces, and topless advocates vowed to challenge in court. In January 2018, the women filed a lawsuit in federal court seeking to strike down the resort town's ordinance.

"This lawsuit is about confirming the legal right of women to be bare-chested in public in the same places that men are permitted to be bare-chested, for purposes other than breastfeeding," the complaint read.

In court in December 2018, Mayor Meehan testified that he and city council members felt they had to respond to the concerned calls and emails received following the topless appearances. Meehan said he believes the ordinance reflects the public's sensibilities because of the public comments he received.

Local authorities outlawed topless sunbathing after fears from some residents and tourists that topless women would flock to the sandy shores of Ocean City. Word that the town's beach patrol would disregard women who were sunbathing topless circulated across social media; local officials said lifeguards would focus on swimmers, while police handled complaints on too much exposed flesh.

"There are good men and women out there who are fighting for equality and you see it in the #MeToo movement, but you're seeing it here as well," Devon M. Jacob, a national civil rights attorney who represents the women, told WBAL TV. "This is where it starts, or rather, frankly, this is where it's going to end."

Meehan told The Washington Post there is no constitutional right to public nudity in Ocean City. He said the town will pursue all available legal options to fight the lawsuit. "The Mayor and City Council firmly believe that Ocean City must continue to be a family resort that does not permit women to be topless on our beaches or in other public areas," Meehan told the newspaper.

The women who sued Ocean City are Chelsea C. Eline of Salisbury, whom court papers said has used the alias Chelsea Covington, along with Megan A. Bryant of Lothian, Rose R. MacGregor of Salisbury, Christine E. Coleman of Long Island City, New York, and Angela A. Urban of Pittsburgh, Pennsylvania.

Eline and Jacob vowed to sue to normalize female toplessness. She had asked Worcester County officials to weigh in on the laws regulating toplessness in Ocean City.

"The fact is if a male can walk outside with his chest bare without the world coming to an end, so can a female," Jacob told Fox Baltimore in 2017.

The attorney general's staff said previously that courts have upheld prohibiting women from exposing their breast in public while allowing men to do so under the same circumstances. So the city's ban does not violate the federal or state constitution, it said.

Meehan said previously on Facebook, "We have a responsibility to protect the rights of thousands of families who visit our beach and Boardwalk each summer season, and the letter of advice agreed with our position."

Ocean City officials say the ordinance prohibits offenses involving public nudity or those in a state of nudity. The law says "there is no constitutional right for an individual to appear in public nude or in a state of nudity. Whatever personal right one has to be nude or in a state of nudity that right becomes subject to government interest and regulation when one seeks to exercise it in public."

Start Of Topless Controversy

A 2017 memo directing the beach patrol in Ocean City to disregard women who sunbathed topless was shared across social media, with news that the popular resort town on Maryland's Eastern Shore is now a topless beach. Not so fast, city officials said on Facebook June 9, 2017.

"Despite what is being circulated on social media, the Town of Ocean City is not a topless beach and will not become a topless beach," read the city's Facebook post.

The misunderstanding likely began when Ocean City Beach Patrol employees received a memo telling them not to approach women who sunbathe topless. In past years, patrol workers would tell women to cover up, but a policy that began May 20, 2017, said employees should instead document complaints of toplessness only, even if beachgoers ask that the sun-worshippers be ordered to dress. Police officers will still handle nudity complaints.

City officials were unhappy with the social media firestorm that erroneously labeled the town's beaches as topless.

"We want our lifeguards to have their eyes on the ocean, as the safety of our swimmers is their first priority," city officials said. "Our police department, on the other hand, will respond to calls from the Beach Patrol and complaints from our beach patrons, should any activity of toplessness occur."

Ocean City leaders received dozens of phone calls, read thousands of comments and answered numerous emails from residents and visitors expressing their concerns about the purported change at the beach. "We assure you we share those concerns and intend to do whatever is necessary to prevent this from happening on our beach, or in any public area in Ocean City," says the city on Facebook.