In short: Yes! (At least at the time of writing this.)
This post will be different from most of my others, but the equality of men and women being topless is a topic that I think about a lot as an outdoor boudoir photographer. This is not legal advice but it is a concise summary of the relevant laws and court decisions that you would want to know before deciding to leave your house without a top.
Across the United States, the legality of women being topless in public varies considerably due to factors such as federal precedent, state laws, local ordinances, and societal norms. This article aims to provide an overview of the legal landscape surrounding topless rights, focusing on New Mexico—including Doña Ana County, Las Cruces, and other municipalities.
Toplessness Laws Across the United States
Federal Precedent: The 10th Circuit Court of Appeals, which has jurisdiction over New Mexico, ruled in Free the Nipple-Fort Collins v. City of Fort Collins (2019) that gender-specific toplessness bans are unconstitutional under the Equal Protection Clause. This decision provides a strong precedent for challenging similar restrictions across the state.
State Laws: No specific New Mexico law prohibits women from being topless in public, making it one of 35 states without such legislation. The state’s indecent exposure law (NMSA 1978, Section 30-9-14) deals only with genital areas and their intentional exposure for arousal or offense purposes.
Persuasive Court Cases Supporting Topless Rights
Several court cases have set crucial legal precedents by ruling that gender-specific toplessness bans violate constitutional protections:
- People v. Santorelli (1992): New York’s highest court ruled that criminalizing female toplessness in situations where male toplessness is allowed violates gender equality under the Equal Protection Clause.
- Free the Nipple-Fort Collins v. City of Fort Collins (2019): The 10th Circuit Court of Appeals struck down a Colorado city’s ban on female toplessness, citing the unconstitutionality of treating genders differently without sufficient justification under the Equal Protection Clause.
- State v. Ciancanelli (2005): In Oregon, the state supreme court protected nudity as a form of free expression unless intended for sexual arousal. This decision was based on the state’s constitution rather than the Equal Protection Clause.
Toplessness Laws in Doña Ana County and Las Cruces
County Ordinances: No specific county-level ordinances prohibit female toplessness in Doña Ana County. However, general public decency laws might apply when toplessness is deemed offensive or disruptive.
City Ordinances: The City of Las Cruces does not have a specific ordinance criminalizing toplessness. Public decency laws focus on genital exposure and lewd behavior, meaning that toplessness may not be considered illegal unless it’s tied to indecent conduct.
Topless Rights in Other New Mexico Municipalities
Other areas with progressive cultural norms or no explicit bans include:
- Santa Fe: Known for its artistic and open-minded community, toplessness is unlikely to face enforcement except in specific disruptive contexts.
- Albuquerque: No explicit ban exists; however, public decency laws could be interpreted to regulate toplessness.
- Taos: Toplessness is unlikely to face enforcement due to the artistic and open-minded community.
Areas with potential restrictions include:
- Roswell and Clovis: These areas enforce public decency laws more conservatively, meaning that toplessness may face stricter scrutiny despite the absence of explicit bans.
Challenges and Caveats for Topless Women
Despite legal precedents and the absence of explicit prohibitions in some jurisdictions, women going topless might still encounter challenges:
- Societal Norms: Women may face public disapproval or harassment even in areas where toplessness is legal.
- Discretionary Law Enforcement: Law enforcement officers could interpret general public decency laws to target toplessness, despite its legality.
- Legal Costs: Challenging a citation or ordinance might require significant time and resources, especially if local authorities attempt to enforce unclear laws.
- Private Property Rules: Public toplessness does not override property owners’ rights to enforce their own dress codes.
Conclusion
This article provides a general overview of toplessness laws and related legal precedents but does not constitute legal advice. Laws and enforcement can vary based on context, and consulting a qualified attorney is recommended for specific legal concerns.
In New Mexico, women’s right to be topless in public has been increasingly recognized through progressive legislation and court decisions. However, societal norms and discretionary law enforcement still present challenges. As the movement toward gender equality continues to gain momentum, we can expect further changes in
laws and attitudes regarding topless rights nationwide.
Natural Exploration 