The ongoing saga of three women who want to go topless in New Hampshire continues. The ladies are challenging a Laconia town ordinance that prohibits the practice. Having failed to find relief at any court in the Granite State, they’d like SCOTUS to hear them out.
Three New Hampshire women are asking the Supreme Court to declare that a city ordinance banning women from appearing topless in public violates the Constitution by treating men and women differently.
I asked Dan Hynes, who has served as legal counsel on the case through to the NH State Supreme Court, for a comment.
We are hopeful the U.S. Supreme Court takes the case as we believe the 3-2 majority of the New Hampshire Supreme Court erred in finding that the ordinance that treats male and female nipples [differently] was not discriminatory.
…Sex discrimination is not in the federal constitution and there is a split among federal courts on this issue. I believe a criminal law that has an element of the offense requiring proof of someone’s sex, is inherently immoral, and unconstitutional.
If the United States Supreme Court declines to hear this case, the only options left would be to try and get the federal court to address it on federal law, or to have the legislature tell towns and cities that they lack the authority to make a crime/violation based upon someone’s sex.
In a 3-2 ruling, the NH State Supreme Court upheld the Laconia ordinance, noting that,
“society’s conventions consider female breasts to be an “erogenous zone” and that the laws ban both men and women from exposing body parts that are “intimately associated with the procreation function.”
In previous remarks, I wondered? Why doesn’t this ruling apply to recent laws that eliminate “privacy in spaces where “erogenous zones” intimately associated with the procreation function could be exposed to members of the opposite sex by statute.”
So-called gender-equality laws require the comingling of biologically male and female people and parts in what were once sex-specific spaces. To protest that ‘right’ in New Hampshire is now discriminatory and subject to legal action. But the presumption that the parties involved have no sexual inclinations based on how they claim to be presenting is absurd and contradicts the 8th Circuit Courts rejection of similar case in Springfield, Missouri.
Springfield’s Ordinance is substantially related to its important governmental interests in promoting public decency and proscribing public nudity to protect morals, public order, health, and safety.
Locker rooms and bathrooms accessible to the public would apply, including public school facilities.
So, which is it? If naked men claiming to be women cannot be denied access to a bathroom or gym shower with nude biological women, then shouldn’t women be able to go topless in public?
But if women cannot go topless in public the so-called gender equality laws that create the same circumstances under which the 8th circuit found a “governmental interest in promoting public decency and proscribing public nudity to protect morals, public order, health, and safety,” are ripe for a legal challenge.
I am not holding my breath.
Note: Dan Hynes will continue to represent the three women from Laconia but will not handle oral arguments if SCOTUS takes the case.