LACONIA — Six months after the state Supreme Court ruled in favor of Laconia’s ordinance banning women from going topless in public, the three activists who protested the ban have appealed their case to the U.S. Supreme Court.
Heidi Lilley of Gilford, Ginger Pierro of Canaan, and Kia Sinclair of Danbury have petitioned the nation’s highest court to declare that the Laconia ordinance violates their constitutional rights on the grounds of sexual discrimination.
The three women are part of Free the Nipple, a movement that seeks to bring attention to what it sees as the double standard that allows men to be topless in public areas, but does not allow women the same right.
In February, the state’s high court, in a 3-2 decision, found Laconia’s nudity ordinance does not discriminate against women by allowing men, but not women, to be topless in public.
The case arose from two arrests at Weirs Beach in 2016. Pierro was practicing yoga in Endicott Park without a shirt on May 28, 2016, and refused several requests from police to cover her breasts, leading to her arrest. Three days later, Sinclair and Lilley, who are involved in the Free the Nipple movement, appeared topless at the same beach in a civil disobedience effort to end gender discrimination involving women’s breasts, and in support of Pierro, according to court documents.
The women’s challenge to Laconia’s ordinance failed in local courts and eventually made it to the state Supreme Court. They argued that it was discriminatory to differentiate between the treatment of men and women based on their anatomy.
The U.S. Supreme Court typically agrees to take up just 1 percent of the cases it is asked to hear, but the divided 3-2 ruling in February might sway the nation’s highest court to take the case, said Dan Hynes, a Nashua lawyer who is working on the appeal, along with Eric Isaacson, a civil appellate lawyer in La Jolla, California.
The majority in the state Supreme Court appeal found that, while the Laconia ordinance required women to cover more parts of their body than men, that is because of social conventions that associate those body parts with the procreative function. The minority, however, noted the Laconia ordinance “creates a dress code which only one gender can violate.”
The same month as the state’s high court ruled on the local case, the federal appeals court for the 10th Circuit struck down a topless ban in Fort Collins, Colorado, near Denver. In that case, the court concluded that society’s sexualization of the female breast “serves the function of keeping women in their place.”
Hynes said he expected the Supreme Court would decide in October whether it would take the case.
If the U.S. Supreme Court does not take the case, Hynes said the two other options would be to get the Legislature to pass a bill that regulates public nudity in a gender-neutral way. New Hampshire currently has no public nudity statute, leaving the matter up to individual municipalities to regulate.
Hynes said the other option would be to take the case to the U.S. District Court. If the district court ruled the Laconia ban is unconstitutional, that ruling would apply to the U.S. First Circuit which, in addition to New Hampshire, comprises Maine, Massachusetts, Rhode Island, and Puerto Rico.