Commissioners take next step in allowing female toplessness in Manhattan

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An activist wears body paint during the protest march, called the GoTopless Day Parade in Bryant Park Sunday, Aug. 23, 2015, in New York. The parade took to the streets to counter critics who are complaining about topless tip-seekers in Times Square. Appearing bare-breasted is legal in New York. But Mayor Bill de Blasio and […]

MANHATTAN, Kan. (KSNT) – The Manhattan City Commission met on Tuesday to vote to overturn a city ordinance that bans women from being topless in public.

Kansas is in the 10th Circuit of federal courts, which recently made national news when they heard a case in February where a claim was filed challenging the constitutionality of a Fort Collins, Colorado ordinance that only criminalized female toplessness.

The 10th Circuit Court issued a preliminary injunction against the city saying that if the proceeded, the Court would likely find the Fort Collins’ public nudity ordinance to be unconstitutional as a violation of women’s equal rights.

There was no final decision, and the case is expected to end in a settlement, so there was no legalization of toplessness in Colorado.

Currently, the State of Kansas does not have a law that generally prohibits public nudity. This means that unless a Kansas city has adopted an ordinance criminalizing female toplessness, general female toplessness is not illegal in that area unless the facts violate a different state law.

In Manhattan, city code said any person knowingly appearing in a state of nudity in public is illegal.

The city has prosecuted 51 people for public nudity since 2003, and of the 14 women prosecuted, six were topless.

The City Commissioners voted to take the next step to change the current ordinance after the city attorney’s office recommended the city make changes to decriminalize female toplessness.

Oklahoma and Utah have had cases where women have gone topless, have been fined for it, and have fought the fines in the court system.

City Commissioner Wynn Butler said if nothing is changed a lawsuit could come, costing the taxpayers money in legal fees.

“The problem is that it provides a basis for a civil lawsuit,” Butler said. “Because what happens is because someone can challenge it on the basis of equality. A man can walk around without a shirt and that’s ok and a female can’t.”

Mayor Mike Dodson said that for Manhattan to reverse the ordinance, the Court of Appeals must change its law.

“Now, if the circuit court should deem, here in the future, that this case should’ve been rejected or in other words that it should be some reason for a difference between toplessness for men and women, then we can simply reverse this ordinance that we’re going to consider tonight,” Dodson said.

The City Commissioners had three choices they could make, they could maintain the law, change it for males and females to both be topless in public, or ban everyone from being topless in public.

The commissioners unanimously chose to move forward to overturn the ban, but don’t go topless just yet, as there are more approvals that need to happen before it is legal.

The amendment still needs to pass in the consent agenda on November 5, and if that occurs, it would go into law on November 11.

Even if it does become legal, women can still be fined for being topless if it breaks other laws.

No person has the unrestricted ability to appear in public in a state of nudity. The facts of a woman appearing topless in public may violate a different state law.

For example, a woman appearing topless in public could violate the state law prohibiting “lewd and lascivious behavior” if the facts meet the law’s requirements. K.S.A. 21-5513 makes it unlawful for any person to appear in public exposing a sex organ, in the presence of someone other than a spouse and who has not consented, with the intent to arouse or gratify the offender’s own sexual desires or of another person.

In addition, the facts could violate another sex offense criminalized under state law.

Manhattan City Attorney’s Office

To read the full city ordinance on public nudity, click here.

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