Bare breasts in Boulder: ACLU says topless gardener controversy shouldn't lead to female nipple ban

Thumbnail image for there's something about mary topless photo.jpg
Should these (as seen in "There's Something About Mary") be illegal in Boulder?
Yesterday, we told you about Boulder's Catharine Pierce, 52, whose decision to garden topless in her front yard, which is located near a pre-K through 12th grade school, stirred complaints and police calls even though her actions are legal under current town rules.

The latest? The Boulder Daily Camera reports that the Boulder Housing Partners, which provides assistance to the Pierces and other lower-income community residents, is planning to rewrite its rules to require tenants to shirt-up when going outside -- something Catharine's husband, Robert, promises to fight.

Would the Pierces have a case?

Judd Golden, chair of the Boulder American Civil Liberties Union, doesn't want to comment on specifics -- and he emphasizes that the ACLU is not involved in the matter at this point. Still, he notes that the organization generally believes "you should be able to expect that what governs behavior like this are the laws, not private rules." Moreover, he doesn't think the dust-up should convince Boulder officials to start making distinctions between male and female nipples.

Some background:

Boulder District Attorney Stan Garnett supports a public nudity ordinance that wouldn't treat participants in annual events such as the Naked Pumpkin Run and the World Naked Bike Ride like sex offenders. An ordinance to that effect was put before Boulder City Council, but the ACLU objected to it. Among its reasons: The proposal would criminalize the areolas of women's nipples but not men's, thereby treating the genders differently in the eyes of the law. This argument swayed numerous council members, who decided to drop the nipple segment even as they pushed the rest of the regulations forward in the process.

Golden hopes the Pierce kerfuffle won't cause council members to consider resurrecting this portion of the ordinance.

"We all want to take one incident and extrapolate that out to the world," he concedes. "But when the council considered this small part of the nudity issue, which is still pending, it seemed like there was a critical mass, except for a couple of councilpersons who said, 'This isn't right.' The rest of them said, 'We're not supposed to treat men and women differently,' and they didn't seem to waiver about that at all.

"We have nondiscrimination rules here, and the idea that it's in the public interest to segment out particular parts of human bodies for criminal treatment seems like it's a bit antiquated in this world of so much more openness than we had during days of the past. If we start going down that road, where does it end?

"It's very easy to find people who take offense at things, and the display of the human body has been a topic of discussion for many generations. But when we passed the nondiscrimination laws in Boulder, which we've had for a long time, it seems like they chose not to make those distinctions. They were well aware back then that the male anatomy and the female anatomy are different, and the female breast was not prohibited."

Indeed, Golden notes, the only nudity ordinance on the Boulder books right now dates back to the Eighties, when nude sunbathing came into vogue at Coot Lake. It states that genitals cannot be exposed, but leaves breasts untouched, legally speaking.

In any event, Golden sees "no evidence that this is an ongoing, chronic problem in Boulder that needs a new law," despite the attention Pierce garnered a few days back. "Perhaps just dealing with this individual situation might be a better way to go."

That's the argument he'll make on April 6, when the council will again consider the nudity ordinance. As for the potential of the Pierces taking on Boulder Housing Partners, Golden says, "The ACLU hasn't taken a position on this, but our overall view is that we really think government ought to stay out of people's private lives. These are the types of things that some people put into the category of free expression, and the government has other concerns. It shouldn't be making a distinction between males and females and transgendered people and gender-variant people.

"How can you make those distinctions with clarity? If they're going to say female breasts are okay, well, what's female? When would a transgendered person be subject to that? And what are the age requirements? The more you try to do this to conform, the more you see how silly it is."

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