Topless Women Can Be Banned From Ocean City Beaches: Maryland AG

OCEAN CITY, MD — Leaders in Ocean City have the legal right to ban topless women from sunbathing on the town's beaches, says the Maryland Attorney General's office. The legal opinion issued Thursday bolsters an emergency measure the city council enacted June 10 to ban public nudity.

Local authorities met a week ago to quickly enact the law after fears from some residents and beach-goers that bare-chested women would flock to the sandy shores of Ocean City. Word that the town's beach patrol would disregard women who are sunbathing topless circulated across social media; local officials said lifeguards would focus on swimmers, while police handled complaints on too much exposed flesh.

While the Worcester County States’ Attorney waited for an opinion from the Attorney General Brian Frosh on its ban, word circulated that Ocean City had become a nude beach. With the opinion issued by Frosh's staff, the city has state backing for its new ordinance.

The attorney general's letter say, “it is our view that Maryland courts would hold that prohibiting women from exposing their breast in public while allowing men to do so under the same circumstances does not violate the federal or State Constitution.”

The attorney general's letter cites multiple legal precedents where the constitutionality of indecency statutes applied to topless women, but not men, on the grounds that there are “real physical differences” between their bodies. And a federal court case says officials can uphold "the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones,” according to the legal opinion.

But city officials were warned that public sentiment on an issue can change, and breast-feeding women are exempt from the ban.

Mayor Rick Meehan said on Facebook, "We are pleased to see the Attorney General’s Office has advised that prohibiting topless women sunbathing is not a violation of equal protection. We have a responsibility to protect the rights of thousands of families who visit our beach and Boardwalk each summer season, and the letter of advice agreed with our position."

Ocean City officials say the new ordinance prohibits offenses involving public nudity or those in a state of nudity. The law says “there is no constitutional right for an individual to appear in public nude or in a state of nudity. Whatever personal right one has to be nude or in a state of nudity that right becomes subject to government interest and regulation when one seeks to exercise it in public.”

The topless ban also says “equal protection clause does not demand that things that are different in fact be treated the same in law, nor that a government pretend there are no physiological differences between men and women.”

Start of Topless Controversy

A memo directing the beach patrol in Ocean City to disregard women who are sunbathing topless was shared across social media, with news that the popular resort town on Maryland's Eastern Shore is now a topless beach. Not so fast, city officials said on Facebook June 9.

"Despite what is being circulated on social media, the Town of Ocean City is not a topless beach and will not become a topless beach," read the city's Facebook post.

The misunderstanding likely began when Ocean City Beach Patrol employees received a memo telling them not to approach women who sunbathe topless. In past years, patrol workers would tell women to cover up, but a policy that began May 20 said employees should instead document complaints of toplessness only, even if beach-goers ask that the sun-worshippers be ordered to dress. Police officers will still handle nudity complaints.

Capt. Butch Arbin told WBOC that legal uncertainty followed a request to allow topless sunbathing led to the policy change. Chelsea Covington is an advocate to normalize female toplessness, who has asked Worcester County State's Attorney Beau Oglesby to weigh in on the laws regulating toplessness in Ocean City. Oglesby, in turn, asked for an opinion from Maryland Attorney General Brian Frosh, but his office didn't weigh in until Thursday.

“The woman has provided what she believes is legal justification for her to be allowed to sunbathe and walk about our beaches topless,” Arbin wrote in a memo to the beach patrol, reports WBAL.

City officials were not thrilled by the social media firestorm that erroneously labeled the town's beaches as topless.

"We want our lifeguards to have their eyes on the ocean, as the safety of our swimmers is their first priority," city officials said. "Our police department, on the other hand, will respond to calls from the Beach Patrol and complaints from our beach patrons, should any activity of toplessness occur."

Ocean City leaders have received dozens of phone calls, read thousands of comments and answered numerous emails from residents and visitors expressing their concerns about the purported change at the beach. "We assure you we share those concerns and intend to do whatever is necessary to prevent this from happening on our beach, or in any public area in Ocean City," says the city on Facebook.

»File photo of Ocean City beach courtesy of the town of Ocean City, Maryland