Bare breast ban in Boulder: Is city council ready to treat men's and women's nipples differently?

At a meeting tonight, the Boulder City Council will take up a proposed public nudity ordinance that's gone through several permutations in recent months.

At first, the measure forbade the display of a woman's nipples, among other things. Then, the council stripped the ordinance of this language.

But now, council members will be reconsidering following publicity garnered by Catherine Pierce, 52, who gardened topless near a school -- and after a report from the Boulder City Manager's office saying that differentiating between the genders' aerolas isn't necessarily discriminatory. All of which troubles Judd Golden of the Boulder ACLU, who feels any ban of women's nipples in Boulder is unnecessary and unwise.

The council's agenda for tonight's meeting, which can be read in its entirety by clicking here, includes an analysis undertaken by City Manager Jane Brautigam's office of questions about the ordinance from assorted members. For example, here's the response to the question, "Does the treatment of men and women differently in a nudity ordinance violate equal protection principles under the state and federal constitutions?:"

Answer: No. While a legislative classification based solely on sexual status is subject to close judicial scrutiny, the legislative classification will be sustained if it is related to the objective of the statute, and is reasonable and not arbitrary... Courts in many jurisdictions around the country have considered whether an equal protection violation exists where a law prohibits exhibition of the female breast but not the male breast. In general, courts have upheld the laws as rational and related to an important governmental interest. As explained in one court,

...we must recognize that the public reactions to the exhibition of the female breast and the male breast are highly different. The male chest is routinely exposed on beaches, in public sporting events and the ballet, and in general consumption magazine photography without involving any sexual suggestions. In contrast, public exposure of the female breast is rare under the conventions of our society, and almost invariably conveys sexual overtones.

When asked about this assertion, the ACLU's Golden doesn't attack it from a legal perspective, but from a public-policy point of view.

"At last consideration, a substantial majority of council said that it did not seem fair to them to treat womens' chests differently from mens' chests," he says. "That, I think, is the state of affairs here. Whether you can do so legally, make some kind of distinction, may be an open question. But this is as much as anything for council a political question -- whether they think it's fair to treat men and women differently given the strong, overarching policy the city has to not discriminate against people on the basis of their gender."

As Golden has said previously in this space, he doesn't believe the Pierce case should be used as a rationale for approving a public-nudity ordinance. In his view, that matter should be handled by the Boulder Housing Authority, which can establish guidelines related to folks, like Pierce, living in residences it oversees and controls.

At present, the only nudity ordinance in Boulder pertains to Coot Lake, which became a popular nude sunbathing site circa the Eighties. That rule outlaws the exposure of genitals, but from a legal perspective, it doesn't touch on breasts -- and that makes sense to Golden.

"The Coot Lake ordinance has been the policy of the city for 25 years or more when dealing with this issue," he says. In contrast, "the way other cities have dealt with this is a crazy quilt of picking out little parts of the body -- the nipple or the aerola or the female breast or however you want to describe it. And the city council decided the last time that they don't want to deal with all of that."

Another reason for the council not to pass such an ordinance, Golden argues, is "legislation that's been introduced in the Colorado House and is currently pending. It's passed two committees and it would significantly change how a nudity incident could be enforced... The ACLU strongly feels they ought to defer final consideration of this to see what the state does and whether that addresses their concerns."

Thus far, the council has shown no willingness to accept this advice -- but Golden plans to be at this evening's council meeting to make one more plea on behalf of treating all nipples equally.