Free the Nipple-Fort Collins v. City of Fort Collins - 916 F.3d 792 (10th Cir. 2019)

Rule:

No State shall deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, § 1. The Equal Protection Clause, as the U.S. Supreme Court has interpreted it, directs that all persons similarly situated should be treated alike. At a minimum, it requires that any statutory classification be rationally related to a legitimate governmental purpose. But more stringent judicial scrutiny attaches to classifications based on certain suspect characteristics. These (often immutable) characteristics seldom provide a sensible ground for differential treatment. Gender, for instance, frequently bears no relation to ability to perform or contribute to society, and statutes that differentiate between men and women very likely reflect outmoded notions about their relative capabilities. As a result, gender-based classifications call for a heightened standard of review, a standard dubbed intermediate scrutiny because it lies between the extremes of rational basis review and strict scrutiny. To survive intermediate scrutiny, a gender-based classification needs an exceedingly persuasive justification. The classification must serve important governmental objectives through means substantially related to achieving those objectives.

Facts:

The city of Fort Collins, Colorado, enacted a public-nudity ordinance that imposed no restrictions on male toplessness but prohibited women from baring their breasts below the areola. In response, Free the Nipple, an unincorporated association, and two individuals, Brittiany Hoagland and Samantha Six (collectively, "the Plaintiffs"), sued the City in federal district court, alleging, among other things, that the ordinance violated the Equal Protection Clause, U.S. Const. amend. XIV, § 1. The plaintiffs asked for a preliminary injunction to halt enforcement of the ordinance. The district court ruled in favor of the plaintiffs and enjoined the City, pending the resolution of the case's merits, from implementing the ordinance to the extent that it prohibited women, but not men, from knowingly exposing their breasts in public. The City then brought the interlocutory appeal to challenge the injunction. 

Issue:

Did the district court err in issuing the preliminary injunction? 

Answer:

No.

Conclusion:

The Court upheld the district court’s issuance of preliminary injunction on the grounds that the ordinance likely violated the Equal Protection Clause, U.S. Const. amend. XIV, § 1, because, applying intermediate scrutiny, the City presented no evidence that a law permitting public exposure of female breasts would have a significantly negative impact on the public. According to the Court, laws grounded in stereotypes about the way women were, served no important governmental interest. The Court held that the district court did not abuse its discretion in finding that plaintiffs made a strong showing of their likelihood of success on the merits, a deprivation of any constitutional right was an irreparable injury, and the public always had an interest in preserving constitutional rights.