CONCORD — The New Hampshire Supreme Court, in a 3-2 decision announced Friday, has found that 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. Ginger 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. Kia Sinclair and Heidi Lilley, who are involved in the “Free the Nipple” movement, appeared topless at the same beach on May 31, 2016, in a civil disobedience effort to end gender discrimination involving women’s breasts, and in support of Pierro, according to court documents.

The three 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 ordinance banning nudity in public places defines “nudity” as “[t]he showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple.”

Sinclair told the court that “breasts, specifically nipples, are ‘hypersexualize[d]’ and ‘consider[ed] pornographic and taboo,’ which she stated results ‘in the stigma’ and ‘contributes to the low breastfeeding rates that the United States has compared to the rest of the world.’”

The state responded that the ordinance “only distinguishes between men and women on the basis of their different physical characteristics ….”

Majority opinion

The court, noting the lack of case history in New Hampshire, cited cases in other states in which similar ordinances have been upheld by the courts, especially Seattle v. Buchanan, in which the Washington Supreme Court stated, “It is true that [the ordinance] requires the draping of more parts of the female body than of the male, but only because there are more parts of female body intimately associated with the procreative function. The fact that the ordinance takes account of this fact does not render it discriminatory.”

Writing for the majority, Associate Justice Anna Barbara Hantz Marconi stated, “We agree with the dissent, of course, that this court has a duty “to make an independent determination of the protections afforded in the New Hampshire Constitution … we fail to see how we depart from that duty by checking our work against other courts, many of them in states with equal protection provisions similar to our own.”

The ruling continues, “The facts of this case, including the particular way in which men and women differ with respect to the traditional understanding of nudity, are unique. … Nor should the siren call of ‘equal rights’ lead us to forget our constitutional role. … That the ordinance may or may not ‘reflect sociological insight, or shifting social standards’ is not determinative for our purposes.

Quoting from Planned Parenthood of Southeastern PA v. Casey, the court wrote, “‘We are told that concepts of morality and propriety are changing’; if so, then ‘it can be reasonably expected that public demand will soon make it imperative that this portion of the ordinance be repealed.’ … The people of Laconia may make such a decision, but this court will not make it for them.”

Minority opinion

Associate Justice James Basset wrote a minority opinion and said while he agreed with much of the majority position, he rejected the argument that the ordinance is not discriminatory because, as a whole, it applies to both men and women. “The challenged portion of the ordinance creates a public dress code which only one gender can violate,” Basset wrote. “This is a gender-based classification.”

“We are extremely disappointed in the Court’s ruling that treating women differently than men does not amount to sex discrimination. The court has effectively condoned making it a crime to be female,” the women’s lawyer, Dan Hynes, said in a statement. “Since the N.H. Constitution, which prohibits sex discrimination, was not enough to prevent this unequal, and unfair treatment, we are hopeful the New Hampshire legislature steps up to correct this injustice by outlawing Laconia’s ordinance.”

Reached after the decision, Lilley said, “Obviously, we’re disappointed.” She said they will be “thinking about what our next step will be, what directions we’re going to go from here.”

While they may appeal the decision, “You can’t tell what the courts are going to do. You just have to trust the judicial system in the end.”

Gilles Bissonnette, the legal director at the ACLU of New Hampshire, which filed an amicus brief in the case, said he was disappointed with the ruling.

“Unlike the Federal Constitution and the cases interpreting its equal protection provision cited by the majority, the New Hampshire Constitution provides even broader protections against gender discrimination,” Bissonnette said in a statement. “What is deeply concerning about this decision is that it undermines these broader, unique constitutional protections and, in so doing, minimizes the importance of the New Hampshire Constitution.”

The attorney general’s office, which defended the ordinance in court, said it would have no comment beyond the brief it submitted. It had argued the city was trying to avoid a public disturbance resulting from bare-breasted women on the beach and that it narrowly tailored the law to requiring only the covering of nipples — not requiring women to wear shirts.

(The Associated Press contributed to this report.)

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