Aiming to reduce the financial risk from potential lawsuits, Manhattan took the first step toward amending its ordinance prohibiting women from being topless in public Tuesday.
A widely publicized preliminary injunction from the 10th Circuit Court of Appeal in a case against Fort Collins, Colorado “strongly” stated the court would likely find such laws unconstitutional over equal rights for prohibiting women from going topless, but not men. Fort Collins, which spent hundreds of thousands of dollars in legal fees on the case, settled and amended their laws to resolve the issue before the case reached a conclusion. That leaves cities in a grey area as such laws haven’t yet been ruled unconstitutional, but the injunction can be used in future lawsuits that can be brought simply because the law exists.
“It gives someone a really good case to argue against the City of Manhattan,” says Manhattan Attorney Katie Jackson. “So we thought it was important to bring it to you because it does create a risk of the use of city funds and resources to defend this ordinance.”
The city commission unanimously voted to amend the ordinance, removing female toplessness from the law. The amendment, if passed on second reading, would still prohibit people regardless of gender from going bottomless. Additionally, the State of Kansas has no law on public nudity, but nudity could be prosecuted under the state’s lewd and lascivious behavior ordinance in certain cases where the exposure was intended to sexually arouse regardless of gender.
“We need to protect our resources as best we can and this will buy us the 6 or 8 months until we find out what other cities are going to do,” says Commissioner Linda Morse. “If there’s a clamor from cities, the state legislature may act also.”
Mayor Mike Dodson says while social mores have been changing nationally, they may have to institute non-gender specific shirt rules at city pools to prevent children from being exposed to nudity.
“If we enact this and then the 10th Circuit finds in a particular way or the [U.S.] Supreme Court decides which of the ways they want to go […] we have the flexibility to change this one as well,” says Dodson.
Commissioner Wynn Butler says that’s the main concern he’s heard from residents, while agreeing to amend the law to avoid financial risk.
“[If] that becomes a problem at the city pools, because it’s not right now, then I think we might have to consider saying, OK fine, everybody is going to have to wear a shirt.”
Mayor Pro Tempore Usha Reddi wanted to hear more from community members, especially business and Kansas State University leaders, but says the change won’t immediately result in everyone going topless. She also notes that European countries do fine under similar laws.
“This is about gender equality and there’s just as many men I’d rather see with their shirts on than off and we often don’t think about all that, but for women we’re pretty strict about who keeps their shirt on and they need to do it regardless,” says Reddi. “To have an option is always a good thing.”
Commissioner Jerred McKee agreed about avoiding lawsuits, but also says amending the law is just as it currently treats women’s bodies as inherently sexual and inappropriate.
“If we’re going to treat males one way in terms of toplessness, we should treat females the exact same way,” says McKee.
If passed on second reading, the law would change November 11th on the current timeline.