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Not So Appealing: NH’s High Court Rules Against “Free The Nipple” Appeal

February 8, 2019

In a 3-2 decision, the New Hampshire Supreme Court has ruled constitutional a Laconia city law banning women from exposing their breasts in public.

The 29-page ruling comes after 3 appellants, Heidi Lilley of Gilford, Kia Sinclair of Danbury and Ginger Pierro of Canaan, sought the court’s relief for their convictions for public nudity when they went shirtless, with their breasts exposed, on Laconia public beaches in 2016. Those convictions, the court’s decision shows, were valid.

The three women, who were protesting in 2016 what they believe to be a discriminatory law against women’s equal protections and free speech, are part of the so-called “Free The Nipple” movement. That movement includes events where women remove their tops in public to protest what they consider unequal treatment under the law.

According to the court’s statement [see RULING], Sinclair joined the “Free The Nipple” movement in part because she was upset how women who publicly breastfeed their babies are treated “in the United States compared to the rest of the world”. The court notes that Sinclair encouraged Lilley to join the movement with her.

The court document further notes that Sinclair believes breasts and nipples “are hypersexualize[d]”, “pornographic and taboo.” This, she said, creates an adverse perception among American women about their bodies and leads to “the low breastfeeding rates that the United States has compared to the rest of the world.”

The court added that Lilley describes herself as a “feminist” who “believe[s] in the equality of male and female.”

It is this sense of equality, the court observed, that led the three women to intentionally go topless at Laconia’s public beaches.

According to the Union Leader (UL), the court’s majority opinion was written by Anna Barbara Hantz Marconi, the court’s only female justice.

Marconi writes that “the Laconia ordinance does not classify on the basis of gender. The ordinance prohibits both men and women from being nude in a public place.” That ordinance, the court observes, includes the female breast and nipple as anatomy that requires some modest covering in public.

In their dissent, male Justices James Bassett and Gary Hicks, the UL reports, “described the majority opinion as needlessly convoluted and artificially complex.”

“Laconia’s ordinance facially classifies on the basis of gender: if a woman and a man wear the exact same clothing on the beach, on Laconia’s main street, or in a backyard ‘visible to the public,’ the woman is engaging in unlawful behavior — but the man is not,” the dissenters claimed [RULING, pages 18-29].

However, in writing for the majority, Marconi did not ignore the minority’s claim, calling its arguments “flawed” and hyperbolic:

At various points throughout its opinion, the dissent lumps the ordinance, and our analysis of it, together with ‘pervasive and perverse discrimination,’ ‘romantic paternalism,’ ‘unexamined stereotypes,’ and ‘archaic prejudice.’ The resort to such hyperbole reveals the flawed nature of its reasoning. It assumes that, because the ordinance does not allow men and women to engage in precisely the same mode of dress, it must contain a gender – based classification. Respectfully, we find this approach deceptively simplistic. For strict scrutiny to apply, it is not enough that men and women be treated differently: they must be treated differently based upon a gender – based classification.” [RULING, page 10.]

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