In an ideal world, elected officials would be experts in public policy. Since no politician can have in-depth knowledge about every policy issue that might come before the government, even the most informed officials rely on information provided by experts to guide their decisions.

In the real world, elected officials need no policy expertise at all. They only need to know how to get elected. To win an election, however, politicians need to have a sense of how voters feel about issues that are significant in the community. Does the ability to win elections make elected officials experts on a community’s beliefs?

Ocean City, a resort town in Maryland, is relying on its mayor and a member of the town council as experts in “community sensibilities.” Plaintiffs who filed a lawsuit challenging a town ordinance contend that winning an election is not a sufficient qualification to testify as an expert witness.

Lawsuit Against Ocean City

In June 2017, Ocean City’s elected officials enacted an emergency ordinance prohibiting females, but not males, from going topless on beaches and in other public areas. While the nature of the emergency is not entirely clear, the ordinance was swiftly challenged by gender equality advocates who contend that women have just as much right as men to uncover their upper bodies when they visit the beach.

Most laws that require women to wear a top target clubs that feature nude dancing. Courts have recognized that dancing is a form of expression that enjoys First Amendment protection, although the Supreme Court has upheld narrow bans against nude dancing that are not intended to curtail expressive conduct.

Challenges to laws banning women from exposing their upper bodies in public areas, as opposed to private clubs, have been premised on the argument that the ordinances infringe “a women’s constitutional right not to be discriminated against on the basis of gender.” Proponents of the ordinances counter that women are anatomically different from men. They contend that female breasts, unlike their male counterparts, are inherently sexual. They accordingly argue that a traditional understanding of morality allows communities to impose anatomically-based restrictions on women that do not apply to men.

Legal challenges to bans on appearing topless in public have met with mixed results. In 1992, New York’s highest court applied the accepted rule that laws may only treat genders differently if the differential treatment serves an important governmental interest. The court noted that the prosecution offered no evidence that a topless ban served an important governmental interest, but ducked the constitutional question by ruling that the law did not apply to women in public places.

A district court in Colorado granted a preliminary injunction against a Fort Collins ordinance that prohibited women from exposing their breasts to public view. The Court of Appeals for the Tenth Circuit affirmed that decision because no governmental interest advanced by the city was sufficiently important to override the right to equality. The fact that some people are bothered when women exercise the same rights as men is not, in the court’s view, a legitimate reason to treat women unequally.

The Court of Appeals for the Fourth Circuit, addressing the question in less depth than the Tenth Circuit, concluded that the differential treatment of men and women served an important governmental interest by “protecting the moral sensibilities” of a “substantial segment of society.” For much the same reason, several state and federal district courts have upheld ordinances that required women, but not men, to cover their breasts in public.

The Fourth Circuit decision and others like it have been criticized for elevating the values of an unmeasured “segment of society” above the ability of women to exercise the same rights as men. Regardless of an individual’s own view of toplessness, court decisions that uphold topless bans depend on the assumption that community sensibilities are offended by breast exposure. The parties in the Ocean City lawsuit therefore turned to expert witnesses to define those sensibilities.

Plaintiff’s Expert Witness

The challengers to the Ocean City ordinance are making their case with the help of Dr. Debra Herbenick, a professor and director of the Center for Sexual Health Promotion at Indiana University-Bloomington. Dr. Herbenick prepared an expert report that criticizes the rationale underlying the ordinance.

According to Dr. Herbenick, Ocean City failed to account for significant similarities between male and female breasts. The primary biological difference is the ability of the female breast to manufacture milk.

Dr. Herenick opined that Ocean City overstated the “sexualization” of female breasts, given the absence of any biological distinction that makes female breasts any more sexual than male breasts. That opinion tracks the Tenth Circuit’s observation (and Judge Rovner’s dissenting opinion in a Seventh Circuit case) that arguments about public sensibility “boil down to a desire to perpetuate a stereotype” about the sexualization of female breasts.

Citing peer-reviewed studies, Dr. Herbenick noted that public sensibilities have changed and that topless women are less likely to be regarded as shocking to public sentiment than was true in the past. However, Dr. Herbenick relied on nationwide studies of thousands of people. She did not survey town residents, whose sensibilities could be more prudish than the nation’s as a whole.

Finally, Dr. Herbenick pointed out that restricting the freedom of women when that same freedom is granted to men may cause harm to girls and women by unduly focusing their attention on characteristics that society regards as sexual.

Challenge to Ocean City Experts

Ocean City filed a motion for summary judgment, asking the court to rule that the ordinance does not violate the Constitution. The plaintiffs responded by asking the court to exclude the testimony of three individuals who expressed opinions about public sensibilities in Ocean City. Two of those, the mayor and a city council member, are elected officials. The third was the president of the local Chamber of Commerce.

The plaintiffs argued that town’s witnesses are not qualified to provide expert evidence. Unlike Dr. Herbenick, who relied on peer-reviewed studies of public perceptions, the town’s three witnesses based their testimony on impressions that they formed by speaking to town residents. They took no surveys and adopted no methodology to assure that the residents with whom they spoke represented a fair cross-section of the community.

In the end, neither the plaintiffs nor the town presented evidence that statistically documents the specific sensibilities of town residents. Neither Dr. Herenick’s reliance on nationwide surveys nor the anecdotal evidence offered by the elected officials can be viewed as a reliable measurement of public opinion in Ocean City.

It seems likely that the judge will rule that politicians are situated to give lay opinions about public sentiment and that those opinions are admissible, even if they are not expert evidence. Based on the judge’s decision denying a motion for a preliminary injunction, it seems likely that the court will rule that public sentiment is a justification for treating women differently from men. If he does so, he will probably rely on testimony from town politicians in ruling that the ordinance is constitutional because it serves an important governmental interest.