Is a Chicago ordinance that requires women but not men to cover their breasts unconstitutional?

On November 12, 2014, Sonoko Tagami sued the City of Chicago alleging that section 8-8-080 of the city's municipal code is impermissibly vague, representing an unconstitutional infringement on her First and Fourteenth Amendment rights.

Titled "Indecent Exposure or Dress," the ordinance prohibits women from exposing to public view "any portion of the breast at or below the areola." Women are required to cover their breasts with an "opaque covering." The ordinance does not prohibit men from being topless in public. Tagami was issued a notice of ordinance violation on August 24, 2014 when she was participating in "Go Topless Day," an annual event where women go topless in public to express their view that women, like men, should not be prohibited from appearing bare-chested.

In order to comply with Chicago's indecent exposure ordinance, Tagami and other protesters had painted their breasts to satisfy the ordinance's "opaque covering" requirement. Nevertheless, she was issued a notice of ordinance violation and ultimately found liable by an administrative law judge in the city's Department of Administrative Hearings. She was fined $100 and ordered to pay $50 in costs.

Tagami's lawsuit seeks the reversal of the ruling, a declaratory judgment that the ordinance is facially unconstitutional, and compensatory damages from the city and Chicago Police Officer Ramona Stovall, the officer who issued the notice.

Breasts and sexuality

The lawsuit raises several issues that have been addressed in other jurisdictions. For instance, in 1992, a New York court found that a statute similar to the Chicago ordinance violated the Equal Protection clause of the U.S. Constitution. In People v. Santorelli, 600 N.E.2d 232, 234, the concurring opinion stated that when a statute is directed at women but not men, the state has the burden of demonstrating that the statute is "substantially related to the achievement of an important governmental objective."

Professor Sara Benson, a lecturer at the University of Illinois College of Law, notes that Illinois already provides protection for women who want to breastfeed in public (see article on page 12). Even though it is legal, some women "encounter issues with actually exercising [that] right." Why? "Because women's breasts are viewed as sexual, while male breasts are simply viewed as another body part," she says.

According to Benson this is likely the basis for Chicago's ordinance. The City of Chicago might use the "women's breasts are sexual" argument to justify the ordinance, Benson says.

Tagami also argues that the City's ordinance is vague. In an interview with the Chicago Tribune, Tagami's attorney argued that low-cut tops and dresses could also be prohibited under the ordinance because they expose portions of the breast that are below the top of the areola. See http://www.chicagotribune.com/news/local/breaking/ct-topless-lawsuit-met-20141112-story.html.

However, in Tagami's case, paint that fully covered her breasts was found to violate the ordinance.

Transgendered breast-barers

Benson says that transgendered individuals add an additional level to the vagueness analysis. "The issue of which 'sex' the transgendered individual belongs to has been addressed by some courts in the context of marriage litigation," she says. Some courts have taken a biological approach to the question. Others have based their opinions on which gender the individual identifies with. Some take a hybrid approach. Benson says that, as written, the ordinance is not clear whether it applies to male-to-female transgendered individuals.

Although the law applies to "females," it is unclear how the law would be applied to a male-to-female transgendered individual going topless in public. Benson says that, under the Illinois Human Rights Act, transgendered individuals are protected, "as sex includes perceived sexual identity and/or gender identity." The Chicago Human Rights Ordinance also protects transgendered individuals from discrimination, she says. She notes that "[on the ordinance's] face, if a male-to-female transgendered individual is [topless] in public, he might be able to walk around showing breasts because he is a man."

Benson notes an ironic possibility in Tagami's lawsuit. "If women are constitutionally protected to go bare chested in public," corporations might invoke that protection to use half-naked women to sell products. On the other hand, she says, some jurisdictions permit women to be topless only if they are not seeking to make a profit.