General Discussion
In reply to the discussion: Men without shirts...no problem. ..women without shirts..against the law. [View all]Jim Lane
(11,175 posts)Last edited Sun Aug 3, 2014, 03:09 AM - Edit history (1)
The Equal Protection Clause in the Fourteenth Amendment has been used to invalidate several statutes that treated the sexes differently. Where a state statute or municipal ordinance prohibits women but not men from appearing topless in public, has it been upheld against an Equal Protection Clause challenge?
At least one judge has concluded that such laws violate the Equal Protection Clause. In People v. Santorelli, 80 N.Y.2d 875 (1992), the law was challenged on Equal Protection grounds. New York's highest court avoided the issue by holding that the statute was aimed at discouraging topless waitresses and did not apply to the noncommercial toplessness in the case before it. In a concurring opinion, Judge Titone rejected that argument. He concluded that the statute did apply to this conduct. He therefore had to reach the constitutional question, and his conclusion was that the statute was unconstitutional.
My guess is that many such statutes have not been challenged, because not all that many women want to go topless in public (even if they want other women to have that right). To assess the effect if the ERA were ratified, you would have to see whether this form of sex discrimination has been upheld on grounds that would still be valid under the ERA.