Updated February 1, 2005

Ten Women Press Suit for Topfree Rights in Florida:
Suit Sought Equal Right of Dress for Women:
Federal Middle District of Florida Dismisses Case, "Disses" Plaintiffs

After failing to gain satisfaction in Florida courts under the Florida Equal Rights Amendment, ten Florida women, including a teenage girl and a descendant of women's rights pioneer Elizabeth Cady Stanton, attempted to sue the State of Florida and Brevard county in federal court for the simple right to remove their shirts when and where men enjoy the privilege. Once again, as in the earlier state suit, the plaintiffs were provided pro bono legal assistance by attorneys Lisa Kuhlman Tietig & Mark Tietig.

The federal Middle District of Florida dismissed the case citing the doctrine that any plaintiff (or group of plaintiffs) gets one chance in one court system to challenge a law. The federal District Court ruled that the plaintiffs should have raised all constitutional arguments in the first judicial forum (Florida state court system) rather than trying to parse out one set of arguments for the federal court system and another set for the state court system.

Additional information on federal suit at LEGAL FREEDOM WEBSITE

Archival information on Florida State lawsuit follows:

The Brevard Chapter of the ACLU of Florida filed suit in Brevard County Court to challenge county and state laws as well as state park rules, all of which prohibit women from exposing their chests except while breastfeeding, while at the same time allowing men the privilege whenever and wherever they wish. The lawsuit states that the women seek the right to be topfree "during their work, beachgoing, gardening, sunbathing, swimming, other outdoor activities, and in other nonsexual contexts as often are their husbands, sons, fathers, and other men."

The women are represented by a female lead attorney, Lisa Kuhlman Tietig, and her husband, Mark Tietig, through the American Civil Liberties Union.

A recent amendment to the Florida Constitution states that all "natural persons, female and male alike, are equal before the law". The new equal rights amendment was passed overwhelmingly by Florida voters in November 1998. The Topfree 10 now claim the simple, personal, physical right to appear in public with the same freedom that men enjoy without question and would be unlikely to give up.

The lawsuit notes many harms which women must endure due to being unable to remove their shirts in public:

The lawsuit states that government reasons for criminalizing the female chest are ridiculous and serve no important governmental interest. Noted in the lawsuit is the medical fact that the human female breast is no more of a sex organ than a male breast.

The Florida lawsuit comes at a time when female topfree activists have enjoyed a number of successes within the United States and Canada.
In 1986 a woman represented herself in the District of Columbia Court of Appeals and won a court victory stating that the D.C. nudity law did not apply to any body part but genitals. Since then the District of Columbia has been legally female topfree.

In 1992 New York's highest state court ruled that women could be topfree in public. Since 1992 women in the highly populous State of New York have enjoyed the right to bare their chests whenever men could do so. As one New York Justice wrote in his concurring opinion, "One of the most important purposes to be served by the equal protection clause is to ensure that 'public sensibilities' grounded in prejudice and unexamined sterotypes do not become enshrined as part of the official policy of government." Although the case was not precisely decided on equal protection grounds by the court majority, New York voters have had no interest in changing the law to re-criminalize topfree women.

In 1996 the Province of Ontario, Canada's most populous provice, became legally topfree due to a criminal court challenge by Gwen Jacob. Because the highest court in Ontario was interpreting a Canadian federal law, this case has set an important precedent for all of the other provinces in Canada. Attempts to change the law to re-criminalize women have not been supported by Canadian voters.

As a result of the Gwen Jacob victory, women throughout other provinces in Canada have challenged local and federal laws seeking to criminalize the female breast. A Canadian professor has organized the Topfree Equal Rights Association (T.E.R.A.) to help these cases and to educate the world about topfree rights in Canada. Tune in and see what's happening up north!

In 1998 charges of indecent exposure were dismissed against three women who were arrested for baring their breasts in Moscow, Idaho. Sounding a familiar theme of political challenge through civil disobedience, one of the defendants, Natalie Shapiro, stated, "We need to challenge unjust laws by peacefully breaking them. That generates attention and controversy and makes people think about why those laws exist in the first place." Although the City Council proposed a new ordinance to criminalize female breasts, the female Council members opposing the new ordinance outnumbered the male Council members in favor. Thus Moscow, Idaho remains legally topfree for women.

In 1998 a Maine woman who had been mowing her lawn without a shirt for three summers faced the threat of police action when a neighbor complained. However, Maine state law does not criminalize female breasts. When the neighbor put a law on the town ballot to criminalize topfree women, town voters rejected it.

In a curious loop of history, the female rights movement in the United States began in Rochester, New York, with Elizabeth Cady Stanton as a principle pioneer. In her own time Elizabeth Cady Stanton was ridiculed for wearing bloomers instead of a floor-length skirt. In 1986 seven Rochester women challenged their arrests and convictions for being topfree in a park during a picnic, with the result that in 1992 New York's highest court made female topfree legal throughout the entire state (see above). In 1999 Cathy Stanton, the 63-year old great-great-granddaughter of Elizabeth Cady Stanton, is a plaintiff in the Florida suit. The Plaintiffs in the suit live throughout Florida. All female members of the local ACLU board are plaintiffs. Most of the plaintiffs are mothers and grandmothers. One plaintiff is currently an 11 year old girl who suddenly can now be criminalized and hauled off to the county jail under the local county anti-nudity ordinance, should she take off her shirt in public. At age 10 this was true regardless of the biological fact that at such an age a girl's breasts are still indistinguishable from a boy's breasts. The girl's mother, Jan Frandsen, a plaintiff who evinces a fierce maternal disapproval of government threats against her daughter, says that "These discriminatory laws are all the more insidious because they are government-sponsored and government-sanctioned. It's legalized sexual harassment."

Shirley Mason, another plaintiff, states that "I am the daughter of African-Americans who moved to Minnesota to escape the Deep South and its oppressive Jim Crow laws. My ancestors paid a heavy price in this country so I would never have to settle for legalized government discrimination again." Mason also notes that "For nearly 18 years, women sunbathing topfree on Miami beaches has been commonplace, safe and uneventful. It has not caused any negative secondary effects on women, children or property values in our community - just the opposite. With this lawsuit, I'd like to right the obvious wrong of gender-biased, anti-nudity laws."

Another plaintiff, Kayla Sosnow, has endured the experience of being arrested and serving 20 days in jail for the 'crime' of taking her shirt off in the 90 degree Florida heat in a forest. Meanwhile her male companion was pointedly allowed his comfortable topless freedom by police.

T.A. Wyner, a prominent 'life-long skinnydipper', plaintiff, successful civil rights litigator, and ACLU board member in Ft. Pierce states that "The idea is that men will be out of control at the mere sight of a woman's breast, so they legislate to women who want to be free of a bikini top. There have been nudist communities in Florida for the past 50 years, and that response doesn't exist."

Judges Overrule State Constitutional Amendment!
Topfree Plaintiffs Petition Florida Supreme Court
Update 1/15/2002

In 1998 Florida voters strongly supported and passed a new amendment to our constitution which, the voters may have thought, made women equal to men before the law in Florida.

Since the female equality amendment was added, Section 2 of the Florida Constitution (titled "Basic rights") has read that "All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property ..."

If you think this explicitly stated guarantee makes women equal to men in Florida, you are quite wrong. According to three male judges in the Fifth District Court of Appeals (5th DCA) based in Daytona Beach, Florida, women are still not quite first class in status.

When confronted with ten women who seek to re-institute their suit to enjoy the same right as men do to doff their shirts in public to work and play in our steamy Florida weather, a three-judge panel of the 5th DCA ruled that our voter-enacted state constitutional amendment has no substance and is only a "feel-good" statement which does nothing to guarantee the legal equality of females in Florida.

The "Topfree 10" lawsuit was filed as an ACLU suit by the Tietig & Tietig firm of Merritt Island, Florida. After a single short hearing a Brevard County Circuit Court judge dismissed the suit on the reasoning that the issue had already been decided in Brevard County and that no change on the law had occurred in spite of the passage of our state constitutional amendment. Because the legal standard of the state constitution is of paramount importance, the dismissal of the Topfree 10 suit was appealed to the 5th DCA.

In an opinion issued on December 14, 2001 the 5th DCA ruled that the state constitutional amendment failed to add "strict scrutiny" for female rights in the Florida Constitution. Instead, the rights of women enjoy only "intermediate scrutiny" -- a status which is unchanged from before the passage of the constitutional amendment.

Meanwhile other categories protected in our state constitution - e.g. race, national origin, and physical disability -- enjoy the full "strict scrutiny" standard. Strict scrutiny makes it extremely difficult and nearly impossible for the government to pass discriminatory laws. Intermediate scrutiny only requires that the government advance a persuasive reason for the discriminatory law.
The 5th DCA panel reasoned that wording of the Constitutional Revision Commission's commentary to the effect that the intent of the proposed amendment "was to affirm explicitly that all natural persons, female and male alike, are equal before the law" did not really mean actual, full, strict scrutiny equality. The 5th DCA reasoned that because the Constitutional Revision Commission backed away from allowing same-sex marriages, the Commission must have intended to provide a lesser scrutiny for female rights than, say, the protection for national origin.

As a solace to the female 50% or more of our population who thought that our state constitutional amendment meant something, the 5th DCA harkened to the protections afforded to women under the federal constitution, and cited to federal constitutional cases which provide "intermediate" scrutiny for female rights.

The 5th DCA claimed that the standard of protection for female rights as stated in these earlier cases was the same as that stated in the 1996 decision of the U.S. Supreme Court in United States v. Virginia, which disallowed single gender state supported education and paved the way for females to enter formerly male-only military style state colleges.

Contrary to the 5th DCA's view, legal scholars and commentators have widely recognized that the decision in United States v. Virginia set a new high watermark of a "nearly strict scrutiny" standard for laws that discriminate against a gender.

However in spite of this widely recognized legal landmark the 5th DCA did not recognize any change in the standard of judicial scrutiny from before and after the United States v. Virginia case. The 5th DCA explicitly equated the new federal constitutional standard with that announced in a number of earlier, pre-United States v. Virginia federal court cases. Thus, again, according to the 5th DCA, even under recent landmark U.S. Supreme Court decisions women have made no progress toward legal equality with men.

In one fell swoop a state appeals court has nullified a state constitutional amendment and a U.S. Supreme Court case. The 5th DCA's ruling will apply to all of Florida unless and until it is contradicted by another DCA or the Florida Supreme Court. Interestingly, the 5th DCA's opinion on the federal constitution was announced even though the plaintiffs sued only under the state constitution.

The 5th DCA ruling seems to contradict a recent case out of the Florida Supreme Court itself. In T.M. v. State, on April 26, 2001 the Florida Supreme Court stated that "If a law impairs a fundamental right, that is, a right which has its source in, and is explicitly guaranteed by, the federal and/or Florida constitutions, the court strictly scrutinizes the law."

The 5th DCA ruling did not discuss the T.M. v. State case.

The plaintiffs in the Topfree 10 case are petitioning the Florida Supreme Court to review the 5th DCA ruling on the grounds that the 5th DCA contradicts a ruling of the Florida Supreme Court and because the 5th DCA opinion defines a provision of the state constitution. The Florida Supreme Court then must decide if it has jurisdiction to review the ruling. If the Florida Supreme Court agrees it has jurisdiction, review of the case is not certain but is up to the Florida Supreme Court.
If the ruling is allowed to stand then the legal standard for review of female rights under the Florida Constitution and as understood by state courts will be set to be lower than that enjoyed under the U.S. Constitution in federal courts.

The bottom line is that our 1998 state constitutional amendment has been rendered effectively null and void. As matters now stand, the voters need not have bothered to try to guarantee female equality in Florida. Our state constitutional amendment means nothing and does nothing to guarantee that "female and male alike" will be equal under the law.

This ruling on the legal standard to be used for female rights in state courts is extremely important. Not only topfree rights but equality for women in education, health, employment (including promotions and benefits), reproductive equality, and societal rights (e.g. divorce and family rights) will all be negatively affected.

Meanwhile women in states such as Ohio, New York, North Carolina and the District of Columbia continue to enjoy topfree rights if they choose to exercise these rights. (In all these cases these rights were won via judicial interpretation of standing statutes.) Female topfree rights have also been recently won in court in the populous Canadian province of Ontario based on the Canadian Charter of Rights and Freedoms. However in spite of years and decades of the existence of peaceful rights within U.S. and Canadian jurisdictions, the 5th DCA stated that it "aligns itself" with courts who have ruled that the government has "exceedingly persuasive" reasons to criminalize women who seek to enjoy male freedoms.

Despite the legal setbacks, B.E.A.C.H.E.S. Foundation will continue its naturist educational mission and look for further opportunities to present the case for equality of gender treatment:  http://www.beachesfoundation.org/donate.htm