In today’s American society, it is nothing for the modern woman and even young girls to wear a bikini to the beach. But a mere century ago, such public attire for a woman would have been considered something not only to condemn but also punish. The trend, it seems, is that as time goes on, modesty becomes less and less of a priority.
However, that doesn’t mean that bearing all is acceptable in everyday life, at least for some of us.
And that is precisely why nude or topless beaches have been a controversial issue for the last few decades, at least here in America. While nations overseas like Australia are known for the sometimes-hair-raising idea, many Americans, especially those of a more religious upbringing, tend to be far more conservative with their bodies.
But as we know times, and beliefs/opinions, change. Here and there, at beaches nationwide, cities and jurisdictions are beginning to allow the option for tops and clothes. Of course, not everyone is happy with this.
And so it has become a legal issue.
One of the most well-known cases of this was in Ocean City, Maryland, back in 2017. Here, the city passed an ordinance that forbids women from going topless at the surrounding beaches.
To protest this, the next year, five local women when to court to challenge the ban. In addition, they announced that they would be going to the beaches topless. And when they did, several were arrested for their ‘crime.’
Since then, the case has dragged on with women on one side saying that they have every right to wear as much or as little as they want and the other declaring it a case of public indecency, especially in a place where small children are likely to be.
This week the case was taken before a federal judge, and he ruled that the ban on women going topless in the city was constitutional. And so the ban is allowed to stand. Any woman who goes topless to an Ocean City beach will be fined.
Naturally, this will not satisfy everyone, and the case will likely be taken to the Supreme Court, especially after the judge explained why he ruled as he did.
As the Baltimore Sun reports:
“Judge James Bredar noted in his ruling that the U.S. Supreme Court has consistently maintained that physical differences between men and women provide a constitutionally sound basis for laws that treat men and women differently. Bredar also determined that protecting the public sensibilities from the public display of areas of the body traditionally viewed as erogenous zones, including female, but not male, breasts, is an important government objective.”
There seem to be a few problems with his rationale, or at least his phrasing raises a few questions.
Firstly, he says, “Whether or not society should differentiate between male and female breasts is a separate inquiry from whether it is constitutional to do so.” But isn’t constitutionality based on what society should or shouldn’t do? Isn’t that kind of the point?
The constitution of our nation was established based on the ideals that our founding fathers believed should be enforced by our society. And throughout our history, lawmakers have proved that if it is unconstitutional, it shouldn’t be or can’t be done.
Therefore, if it is constitutional to “differentiate between male and female breasts” in regards to the law, it can be done.
Secondly, what is all this about public sensibilities? Since when does the law view the shielding of the public from nudity as an “important government objective?” Not that I would complain much if it did, but for the most part, the law seems to care little what, where, when, and how people wear their clothes.
But the critical issue with Bredar’s reasoning comes when he says that the “physical differences between men and women provide a constitutionally sound basis for laws that treat men and women differently.”
Now I’m not necessarily saying there is something inherently wrong with Bredar’s thinking. However, in the current state of society, it could pose some problems, specifically when it comes to the issue of transgender.
What happens when a transgender male who hasn’t received breast reduction surgery shows up at the beach without a shirt? Since the law only applies to women, will (he) be arrested?
It seems unfair for the courts to make gender-specific laws, but then not allow us to define those genders.