After the recent 4-3 vote by the Fort Collins City Council against backing a U.S. Supreme Court challenge to a 10th Circuit Court of Appeals judgment against the rule, the only thing left for Killmer, Lane & Newman LLP's McNulty, who represents plaintiffs Brit Hoagland and Samantha Six in the case, is to negotiate attorney fees, which are expected to be substantial. In 2017, David Lane, McNulty's colleague, estimated that fighting a previous temporary restraining order would cost FoCo $250,000.
None of the cash will go to Hoagland and Six, who sued on behalf of an organization called Free the Nipple- Fort Collins. "They weren't in it for money," McNulty says. "They wanted to change the law, and they accomplished it."
That's not all they did. According to McNulty, the impact of the ordinance's defeat already extends beyond Colorado and transcends the specific facts of the case.
"As it stands right now, the 10th Circuit decision applies to six states: Colorado, Utah, Wyoming, Kansas, New Mexico and Oklahoma," he points out. "So not only did Brit and Sam change the law in Fort Collins; they changed it throughout the 10th Circuit. If any of those states have a law that discriminates on the basis of sex — if it includes the words 'women are prohibited from,' or anything like them — those laws are presumed to be unconstitutional. So this pushes the law to a place where Ruth Bader Ginsburg said it should be when she brought her first equal-protection challenges in the 1970s. It's a really wide-ranging decision."
Thus far, Hoagland hasn't responded to Westword's request for an interview about the latest developments. But Hoagland spoke at length during a July 2017 interview about what turned out to be a very unusual battle for equity.
The controversy began in earnest during an October 20, 2015, hearing at which Fort Collins councilman and former mayor Ray Martinez publicly agonized over the possibility that children under age eighteen might spy a breast live and in person, given that local laws keep "pornographic" magazines such as Playboy out of view at convenience stores.
Martinez's assertions got the attention of Hoagland, who "became interested in the issue because I wanted to dip my toes into politics. I had just graduated from CSU in human development and family studies, and I had thoroughly researched this topic: how families and children are affected by sexist rules, basically. I thought this would be a very simple issue to take on with the city."
No female who is ten (10) years of age or older shall knowingly appear in any public place with her breast exposed below the top of the areola and nipple while located: (1) In a public right-of-way, in a natural area, recreation area or trail, or recreation center, in a public building, in a public square, or while located in any other public place; or (2) On private property if the person is in a place that can be viewed from the ground level by another who is located on public property and who does not take extraordinary steps, such as climbing a ladder or peering over a screening fence, in order to achieve a point of vantage.... The prohibition [on female toplessness] does not extend to women breastfeeding in places they are legally entitled to be.The ordinance established an infraction as a misdemeanor punishable by a fine of up to $2,650, or as much as 180 days in jail, or both.
In the spring of 2016, Hoagland and Six responded by suing Fort Collins over the ordinance, and that October, Judge R. Brooke Jackson rejected FoCo's request to dismiss the case, allowing it to move forward on two of three claims. At the time, Lane told us, "The handwriting is on the wall. When the judge says, 'This statute is unconstitutional,' for whatever reason, that means this fight is basically over."
So it seemed in February 2017, when Jackson issued an injunction against Fort Collins on constitutional grounds. But while this ruling appeared to kill the ordinance, Fort Collins decided to launch a costly appeal.
The case progressed to the 10th Circuit, and in the majority decision, the judges asked: "Did the district court reversibly err in issuing the preliminary injunction? We answer no. ... We affirm the district court’s judgment and remand the case to that court for further proceedings consistent with this opinion."
The reasons for this determination were many, but one key is the court's view that the ordinance violated the Equal Protection Clause of the U.S. Constitution, which states that "no state shall...deny any person within its jurisdiction the equal protection of the laws."
The clause was at the center of Ginsburg's landmark efforts, McNulty notes. "She asked the court to apply strict scrutiny, the same standard applied to race-based discrimination cases. At the time, the U.S. Supreme Court said, 'No, we're not going to go that far. We're going to apply intermediate scrutiny,' a lower burden for allowing discrimination." The ruling on behalf of Hoagland and Six "brings the law up to strict scrutiny. The 10th Circuit implied that if you're going to discriminate against women in 2019, you have to have a really, really good reason, and pretty much all of the time, that's not going to fly, which is the most important thing that happened in this case. The court said, 'When you stereotype based on someone's gender, it's unconstitutional.'"
Granted, this standard only applies to the aforementioned six states, and other circuit courts have ruled differently in similar matters. "That's why we were excited to bring this to the Supreme Court," McNulty acknowledges. "We thought we had a really good shot. But the Fort Collins City Council voted against asking the court to review the case."
One of the main reasons the council didn't endorse beseeching the Supremes, McNulty believes, was the expense. But he also thinks the negative publicity such a move would generate was also a factor: "Did they really want to be known as the town that discriminates against women — to become the poster child for this kind of discrimination? Or did they want to move forward and treat women equally?"
In his view, regulations such as the Fort Collins toplessness ordinance "should go the way of segregation laws of the 1960s. And we're getting there, slowly but surely."
Click to read the 10th Circuit Court's decision in Free the Nipple-Fort Collins v. City of Fort Collins.