Breckenridge works to remove female breasts from public indecency code after federal court decision

BRECKENRIDGE — The display of a female nipple and other parts of the female breast is considered unlawful, lewd and indecent in Breckenridge, where the town code is at odds with the U.S Court of Appeals decision in Free the Nipple-Fort Collins v. City of Fort Collins.

The Colorado Municipal League summarized the court ruling, saying “gender-specific public nudity ordinance violates Equal Protection.” Essentially, the ruling means that as long as men are allowed to be shirtless in public so are women. The Fort Collins City Council decided not to appeal the case to the U.S. Supreme Court and repealed its ordinance prohibiting the baring of female breasts. 

At Breckenridge Town Council’s work session Tuesday, Jan. 14, members discussed the public indecency portion of the town code.

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“Because Fort Collins did not appeal the decision of the Tenth Circuit to the United States Supreme Court, the Tenth Circuit decision is final,” town attorney Tim Berry wrote in a memo to council. “Because Colorado is within the 10th Circuit, the decision in the Ft. Collins case is now binding on the town of Breckenridge.”

The decision makes the section of the Breckenridge public indecency code that mentions female breasts unlawful, Berry said. He added that the other definitions of lewd and indecent display in the town code are gender-neutral and still can be enforced. Those include:

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• “Sexual intercourse, flagellation or any sexual acts which are prohibited by law”
• “The touching, caressing or fondling of the breast, buttocks, anus or genitals”
• “The displaying of the pubic hair, anus, vulva, or genitals”
• “The open display of urinary or excretory functions”

At the meeting, Berry added that a city in New Hampshire lost a similar case and asked the U.S. Supreme Court to review it. On Monday, Jan. 13, the Supreme Court decided not to review the case.

Council member Gary Gallagher asked Berry for the definition of a public space. Berry said all of the incidents in the court cases occurred outside and that he assumes the code update would mainly apply to outdoor public spaces. 

Council moved the ordinance amendment forward, and it passed on first reading in the council’s regular meeting.

While the Fort Collins case decision affects other communities in the 10th Circuit, it appears no other towns in Summit County specifically mention female breasts in their codes.

Frisco doesn’t address public indecency in its town code. Dillon’s town code does not specify women in the section on public indecency, using gender-neutral language. Silverthorne’s town code section on indecent exposure includes only a short sentence, which reads:

“It is unlawful for a person to knowingly expose his or her genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person.”