LACONIA — The Free the Nipple N.H. campaign met the town of Gilford in the 4th Circuit Court, Laconia Division, Monday in a hearing that will decide if the town’s ordinance to ban “female topless sunbathing” is discrimination.
At issue is whether the ordinance discriminates against women by prohibiting them from appearing topless at the beach while men can go topless.
“This is a hecklers’ veto,” said defense attorney Daniel Hynes, who said that this law is specific only to gender and sex.
“If you’re going to object (to something) based on someone’s sex,” he said, “you better have a very good reason.”
The defendants in the hearing were Heidi Lilley of Gilford and Barbara McKinnon of New Hampshire. Both were cited by police for appearing topless at Gilford Beach on Sept. 6. at after Gilford Police responded to at least three separate complaints from beach goers. The citations are violations and not crimes. The hearing and testimony were all part of a motion to dismiss the charge filed by Lilley and McKinnon against the town of Gilford.
He said his clients are being prosecuted only because they are women and that if the beach passed an ordinance that no Asians could go there, no one would be arguing about the wrongness of such a law. Judge Jim Carroll asked him how this set of circumstances and prohibition of a specific race or ethnicity were the same.
“One is race and one is attire,” he said.
Hynes said in this case there isn’t a difference He said the state is looking for an exemption in the law and there is no built-in exemption and the ordinance only addresses women.
The state was represented by Gilford prosecutor Eric Bredbury, who said the safety and orderly conduct of beach-goers is the primary reason for the ordinance.
“Gilford doesn’t want that standard (that toplessness is accepted) at Gilford Beach,” Bredbury said.
He made the argument that if that state, as interpreted by the defense, means to treat men and women differently, then it would also be discriminatory to prevent people from surreptitiously looking, recording or photographing the private body parts of a person, including the genitalia, buttocks, or female breasts, or a person’s body underneath that person’s clothing, which is the case with at least one section of the state criminal code.
Brebury said laws and rules are put in place when the state sees a need for them. He cited a 2001 decision from the New Jersey Supreme Court that upheld a charge against a woman who appeared topless and whose case was argued under the same First and Fourteenth Amendment rights.
While prosecution witnesses testified as to what they saw, they also made their opinions known that toplessness at the beach is unacceptable at Gilford Beach – a private beach open only to residents and their guests – which is what two of the witnesses said is what makes Gilford a good place to live.
Prosecution witness Melanie D’Agata said she was at the beach with her 9-year-old daughter when she noticed “a commotion in a nearby family.” She said she saw a few women in two groups who were topless and called the police. D’Agata said some of the woman in the water were acting like they wanted attention.
Under cross examination, she said it was the upset children that really upset her and that she would have no objection to a woman with a double mastectomy going topless nor would she object to two same-sex people kissing at the beach, because it is the societal norm.
D’Agata she she just felt it was the wrong forum for the Free the Nipple N.H. campaign.
Aaryn Demers testified for the prosecution and she was in her truck, parked in the parking lot, while her husband and 13-year-old son were at the beach.
“I said, ‘No way, that’s not happening,’” she said, adding she approached two of the demonstrators and told the women to put the “expletives” away.
Demers said they told her toplessness is natural and legal, adding that the beach was why she bought a home in Gilford.
Laura Drumheller of Greenfield, Massachusetts, a member of the Free the Nipple campaign, was confronted by Demers at the Gilford beach. Drumheller testified that Demers called her names like “whore and slut,” and told her she must be “mentally unstable” to appear topless at the beach.
Demers also testified she would be offended by a woman who had a double mastectomy being topless at the beach. Under cross-examination, she said if she thought it was legal to go topless in Gilford she would move, and she would do the same if it was legal in New Hampshire.
Drumheller said they had all been at Weirs Beach in Laconia until the beach was cleared so the fireworks displays could be set up. She said it was still very hot and Lilley had invited them to come to Gilford Beach with her.
“We’re trying to show people that women can be topless and the world isn’t going to end,” Drumheller said.
She said prohibitions against toplessness at the beach were part of a “slut-shaming” and a “rape-shaming culture” that still asks rape victims what they were wearing at the time of the attack.
When asked if it is illegal to walk down the street topless, she said it is not, by state law. When asked about Gilford, she again said no. She said the campaign is limited to beaches and pools but when Bredbury asked her about other places she said no.
When asked why she said, “I don’t see a lot of men walking along the downtown topless but it’s kind of weird when I do,” she replied.
Lilley testified that their effort is about equality and the equalizing of the breast. She said the Weirs Beach demonstration was a political statement, but the Gilford Beach incident was because they were hot and Weirs beach had closed. She said she didn’t know about the ordinance prohibiting toplessness until she got there.
McKinnon testified she supports the Free the Nipple cause but that she is more concerned with neutralizing the sexes. She said she identifies with neither gender and considers herself “non-binary,” meaning she does not identify as either male or female.
Under cross examination from Bredbury, McKinnon said she was born female.
Judge Carroll is expected to make a ruling in the near future.
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