Battle over bare-breasted women brews at one of Maryland’s busiest beaches

A battle over bare-breasted women at one of Maryland's most popular vacation spots is heating up as summer hits without a clear answer on whether women are free to be free at the beach.

With the heat approaching, authorities in Ocean City issued a memo this week directing the beach patrol not to confront bare-chested women or ask them to cover up regardless of complaints. The policy is to stand until the Maryland Attorney General's Office opines on state indecent exposure laws after a local beachgoer declared that if men can go sans tops, then women can, too.

"It's about equality, it's about positivity, and it's against body shaming and the forced sexualization of the female form," said Chelsea Covington, a self-described "topfreedom" advocate who wrote a legal brief arguing that Maryland law allows women to go bare-chested in public. "It is most certainly about equality under the law."

The legal dust-up has rankled the resort town along the Eastern Shore, with officials worried seminude women will besmirch Ocean City's reputation as a family-friendly vacation destination.

"The mayor and council have no desire to make Ocean City a topless beach," said Jessica Waters, a spokeswoman for the city. "We have no plans for becoming a topless beach."

Maryland law is not entirely clear when it comes to the question of whether women are expressly prohibited from baring their breasts in public.

Beach patrol employees in Ocean City have been directed to document complaints about topless bathers by filling out "minor incident" forms, but were specifically told not to "approach the topless woman, even if requested to do so by the complainant or other beach patrons."

It is not just Ocean City where the topless issue is kicking up sand.

Legal challenges to local policies are percolating through courts nationwide with varying results.

Maryland's criminal code addressing indecent exposure says only that "a person convicted of indecent exposure is guilty of a misdemeanor and is subject to imprisonment not exceeding 3 years or a fine not exceeding $1,000 or both." But the code does not clearly say being a woman with a bare chest is indecent, Covington said, and common law surrounding indecent exposure typically references the display of genitals.

Covington, who runs a blog called "Breasts Are Healthy," wrote her legal argument after asking police and city officials about two years ago for clarity and training that would allow women to sunbathe topless without interference. She argued that prohibiting women but not men from doing so violates equal protection laws.

"We need some official declaration so that people aren't harassed and so the police know what to do," said Covington, 29. "Officers can only do what they're trained and if they aren't given proper training, they could make false arrests or false fines."

Raquel Coombs, a spokeswoman for Maryland Attorney General Brian Frosh, said the office was asked by the Worcester County state's attorney, Beau Oglesby, to clarify Maryland law in a formal opinion.

"We will be drafting one and I expect it to be released soon," Coombs said Thursday.

Female breast baring has caught the attention of courts across the country.

In February, a federal judge in Colorado blocked the city of Fort Collins from enforcing its ordinance that prohibits women, but not men, from exposing their chests in public.

The policy, the judge found, violates the equal protection clause of the Fourteenth Amendment that generally prohibits the government from discriminating between the sexes. The city has appealed the decision in the case, which was brought by a gender equity advocacy group, Free the Nipple.

In Illinois, however, a federal judge last year dismissed a lawsuit against the City of Chicago filed after police charged a topless protester with indecent exposure. The woman was participating in a "GoTopless Day" event organized by a nonprofit organization that advocates for the right of women to appear bare-chested in public, and said the city's policy violated her freedom of expression guaranteed by the First Amendment. In dismissing the case, the judge noted that the Supreme Court has held that "public nudity is not inherently expressive."

While Ocean City waits for legal guidance from the attorney general, Capt. Butch Arbin of the beach patrol outlined in a memo Tuesday temporary procedures for dealing with the possibility of topless women along the town's 10 miles of shoreline.

The memo emphasizes that the public exposure of genitals - by men or women - is still a clear violation of state laws prohibiting indecent exposure. In that case, the beach patrol may ask the perpetrator to cover up - and call the police for help.

The policy for Ocean City police officers is different, said Lindsay Richard, a spokeswoman for the department. If someone complains of a woman without a top, "our stance is to approach the individual and kindly ask them if they wouldn't mind to put their top on," Richard said.

But it is rarely an issue and typically occurs among foreign visitors who are more accustomed to nude beaches, Richard said. In most cases, people put their tops back on when asked, she said. "We're very much looking forward to more clarity on the indecent exposure law from the Maryland Attorney General's Office just so our officers have a more clear and concise direction on how to move forward with certain incidents."

Waters, the city spokeswoman, said the council is separately exploring what it can do to make sure women aren't allowed to expose their breasts at the beach.

The mayor and the council are unanimous in their view that Ocean City is not the place for topless sunbathing, said Mayor Rick Meehan.

"Ocean City is a family-friendly beach resort and we intend to do whatever we can to keep it that way," he said.