Abstract
Public female-only topless bans are constitutional, as most courts have upheld. This Article addresses two concerns surrounding the equal protection clause of the Fourteenth Amendment: First, whether an ordinance expressly punishing women—but not men—for being topless in public violates the Equal Protection Clause; and second, whether an ordinance targeting women and criminalizing exposure of “the female breast” is unconstitutional.
The Equal Protection Clause makes no distinction between classifications (sex, race, ancestry, alienage, inter alia) and other discriminatory practices. Nor does the text require equal treatment or equal rights. Rather, it requires equality only in the “protection of the laws.” Female topless ordinances do note create any violation of the Equal Protection clause as it treats all females equally.
Public attitudes about gender and sexuality are constantly changing and evolving. Notwithstanding, there is a legitimate governmental interest in protecting the moral sensibilities of the public. A substantial segment of society that does not wish to be subjected to exhibitionists. The barometer of societal sentiment towards this matter is through the democratic process.
Recommended Citation
Max Birmingham,
The Full Monty: Analyzing the Constitutionality of Ordinances That Only Punish Women for Being Topless in Public,
46
S. Ill. U. L.J.
495
(2022).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol46/iss3/4