Heidi Lilley

Free-the-Nipple movement leader Heidi Lilley of Gilford at the group’s topless gathering at Hampton Beach in 2015.

The New Hampshire Supreme Court on Friday upheld the conviction of three New Hampshire women who intentionally violated a Laconia city ordinance when they exposed their breasts at a city beach in 2016.

Free the Nipple decision

Heidi Lilley and Barbara MacKinnon, Free the Nipple activists, listen to court testimony on Dec. 28, 2016, as they ask a judge to overturn a Gilford law forbidding topless women at the town beach.

The divided ruling involves the “Free the Nipple” movement, in which women have gone topless throughout the country to protest what they deem discriminatory laws that prohibit the exposure of the female breast.

One of the defendants expressed disappointment and said the three women will consider their next move, which includes a possible appeal to the U.S. Supreme Court.

“We’ve been criminalized just because we’re female,” said Heidi Lilley, a student at Lakes Regional Community College.

The majority opinion relies heavily on rulings of appellate courts across the country that have upheld laws similar to the Laconia ordinance. Much of their ruling concentrates on how a law that prohibits the exposure of the female breast does not discriminate against women.

“Based on the unique way in which men and women differ with respect to nudity, we conclude that the ordinance does not afford different treatment for men and women based on gender,” reads the ruling issued by Associate Justice Anna Barbara Hantz Marconi, the only female justice on the high court.

The majority cited and agreed with rulings from courts ranging from Memphis to Tucson. Several courts in other states said that government has a right to uphold moral sensibilities and notes that a substantial segment of society does not want to be exposed to parts of the body it regards as erogenous zones.

The 3-2 opinion includes a strongly worded dissent from Justices James Bassett and Gary Hicks, both appointees of former Gov. John Lynch. They described the majority opinion as needlessly convoluted and artificially complex.

They said the Laconia ordinance violates the state’s Equal Rights Amendment.

“Laconia’s ordinance facially classifies on the basis of gender: if a woman and a man wear the exact same clothing on the beach, on Laconia’s main street, or in a backyard ‘visible to the public,’ the woman is engaging in unlawful behavior — but the man is not,” Bassett wrote.

He noted that 60 years ago — when some of the justices were not alive, the state Supreme Court upheld a Manchester ordinance that banned women from municipal golf courses at certain hours of the day, reasoning they are on average slower players than men and the law was for their safety.

The two agreed with their fellow justices in rejecting arguments grounded in Free Speech, statutory authorization, statutory pre-emption and laws prohibiting discrimination in public accommodation.

The majority had strong words too, calling Bassett’s dissent deceptively simplistic. It relied on hyperbole and flawed reasoning, the majority said. And Marconi wrote the justices should not allow the “siren call of equal rights’” to allow them to forget their constitutional role.

Laconia is the only known community in New Hampshire that enforces an ordinance that forbids exposing female breasts. In 2016, a judge threw out a Gilford ordinance, ruling the town did not have the statutory authority to enact such an ordinance. The lawyer for the three women, Dan Hynes of Manchester, said he will confer with his clients. The three could attempt to have Laconia rescind its ordinance, try to get legislation passed that blocks communities from enacting bans on toplessness, or appeal to the U.S. Supreme Court.