The city of Laconia, New Hampshire has an ordinance on its books that bans both men and women from being nude in public. The ordinance expressly forbids females from showing their areolas or breasts. Men, do not face the same prohibition. Three women who were arrested after going topless at a beach in Laconia challenged the ordinance, but New Hampshire’s highest court recently ruled against them.
Heidi Lilley, Kia Sinclair, and Ginger Pierro were doing yoga and sun tanning at Weirs Beach over Memorial Day Weekend 2016 when they were arrested. The three women were topless and, when asked, refused to put on tops. The three women all claimed that the ordinance was discriminatory since men are allowed to go topless, but women are not. They also claimed the law violated their First Amendment right to free speech.
After they were convicted of violating the ordinance, the three women appealed, and their case eventually ended up before a panel of judges on New Hampshire’s Supreme Court. Justice James Basset, who wrote the minority opinion for the Court, stated: “The majority’s conclusion that a lesser standard turns the clock back to the era before the adoption of the Equal Rights Amendment…when women were the victims of pervasive discrimination…”
Justice Marconi, who wrote the majority opinion, stated: “We conclude that the Laconia ordinance does not classify on the basis of gender… The ordinance prohibits both men and women from being nude in a public place. The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity.”
Opponents of the law argue that applying “nudity” differently when applied to men vs. when applied to women is discrimination on the basis of gender. The Court, however, stated the City had every right to enact the laws it saw fit to uphold safety, morals, and order within its borders.
Freedom of Speech
The defense team for Lilley, Sinclair, and Pierro also claimed that Laconia’s ordinance violated their clients’ right to free speech. A representative from the Free the Nipple movement testified that women’s nipples have become “hypersexualized,” resulting in fewer women breast-feeding and women feeling shame when exposing their nipples.
The Court did not agree with that argument either, however. It ruled that because the law prohibited all nudity, regardless of whether it was done as part of an “expressive activity,” it did not violate the First Amendment.
The women have not announced whether or not they will appeal to the U.S. Supreme Court, but that option is certainly open to them.