‘Female breast’ is no longer part of Manhattan nudity ban after final vote Tuesday

The “human female breast” was removed from Manhattan’s nudity ordinance on Tuesday night, as city commissioners unanimously agreed on changes that decriminalized being topless.

The ordinance was crafted in 2003 and will still include details preventing the display of genitals and buttocks. The latter defines that G-strings, T-backs and thongs as not sufficient for covering someone’s rear, which is the reason city officials crafted the change.

City Attorney Katie Jackson said the idea was to protect Manhattan from future lawsuits. Jackson said the U.S. Supreme Court has talked about weighing in on the topic, which has the potential to make their ordinance unconstitutional. A city memo also noted a recent ruling by the 10th Circuit Court of Appeals in the Free the Nipple v. City of Fort Collins, Colorado, case.

“We can make the change now, eliminate the risk in the short term and we can revisit in the spring,” Jackson said.

Only one person, a man, spoke at the meeting about the changes. He said he was disappointed when he first heard about the ordinance amendments but then did his own research.

“I now understand that the wording of that ordinance is likely discriminatory,” the man said.

Commissioner Jerred McKee said the amendment created some hysteria after the first reading of the changes. The Manhattan City Commission votes twice on items before final approval. McKee said most major cities and states don’t have laws on being topless, noting its been technically legal to be topless in New York City and New Orleans since the 1980s.

“And so if it’s the opposite of this, then all men will also have to wear shirts in the city of Manhattan as well — and I think that would create even more hysteria if we did that,” McKee said. “I think this is the most reasonable route to pursue, and it’s the most just and equitable route too.”

Commissioner Wynn Butler added: “It hasn’t been a problem, I don’t think it will be a problem.”

For the Oct. 28 first reading of the change, the city memo notes the changes do not “legalize female toplessness” in Manhattan. For example, women appearing topless in public could still violate the state’s lewd and lascivious behavior law.

“Our laws don’t have the ability to affect state or federal law,” Jackson said. “We are the lowest (government) on the totem poles.”

With the change, Manhattan will not be able to prosecute cases with topless women in municipal court. Cases that violate state or federal laws would still be enforced and wind up in the appropriate court.

“It doesn’t have any impact on what we are able to do here,” Riley County Attorney Barry Wilkerson said. “A lot of municipalities, I think, don’t even have an ordinance on this.”

Manhattan officials say their ordinance is still more strict than most areas in Kansas, noting that many cities don’t have any public nudity ordinance on the books.

The Riley County Police Department also didn’t object to the change.

“We don’t typically have any concerns about changes,” department spokeswoman Hali Rowland said. “We just enforce the law.”

City staff said they received a few calls when the change was first proposed. Those stopped, staff said, once they informed people of the point — to stay ahead of higher court rulings. In a news release, the city talked about revisiting the ordinance before swimming pools open up.

This story was originally published November 6, 2019 at 12:14 AM.