LACONIA – Three women who sunbathed topless on a city beach leading to their arrest are asking the U.S. Supreme Court to declare the local ordinance a violation of their constitutional rights in treating men and women differently.
The plaintiffs are supporters of “Free the Nipple,” an equity movement whose stated mission is to empower women and change the inequalities that sexualize the female breast.
In May 2016, Ginger Pierro of Canaan, Heidi Lilley of Gilford, and Kia Sinclair of Danbury were arrested for violating a Laconia city ordinance banning public nudity, including “the showing of the female breast with less than a fully opaque covering any part of the nipple.”
Laconia’s public nudity ordinance was adopted in the early days of Motorcycle Week to stem harassment of women. It specifically prohibits encouraging or harassing women into removing their tops or displaying their breasts.
There is no state law forbidding toplessness and attorney Dan Hynes of Nashua, who represents the women, argued the ordinance is clearly discriminatory as it treated people differently based on the immutable characteristic of their sex.
In a 3-2 ruling, issued Feb. 8, the N.H. Supreme Court upheld the women’s convictions. The majority decision cited court rulings in other states that said society’s conventions consider female breasts to be an “erogenous zone” and that the laws ban both men and women from exposing body parts that are “intimately associated with the procreation function.”
Noting that the U.S. Supreme Court accepts just 1% of the cases it is asked to hear, Hynes said, because there was a split in the federal circuit on the issue it could help tip the scales prompting the top court to agree to hear the case.
Hynes is not admitted to the U.S. Supreme Court, but will be working on the brief and with attorney Eric Isaacson of La Jolla, Calif., who will make the oral arguments if the case is accepted.
Isaacson has briefed and argued appeals before all but three of the 13 federal appeals courts and has participated in briefing several cases on the merits before the U.S. Supreme Court.
Another factor that will come into play if the case is accepted, Hynes said, is that the federal standard for equal protection is lesser than that in New Hampshire. He expects the court will decide whether or not to accept the case in December.
“We are hopeful,” Hynes said, of the chances of the nation’s highest court taking on the issue.
The Supreme Court will begin hearing cases for the term on Oct. 7. If the case is not accepted, Hynes said, other options remain, including an appeal in U.S. District Court or lobbying for legislation to address the issue.