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Ex-Vt. gubernatorial candidate tells U.S. Supreme Court to take N.H. ‘Free the Nipple’ case

  • Vermont gubernatorial candidate Christine Hallquist answers a question during an editorial board meeting in West Lebanon, N.H., on Oct. 24, 2018. (Valley News - Geoff Hansen) Copyright Valley News. May not be reprinted or used online without permission. Send requests to

Valley News Staff Writer
Published: 9/17/2019 9:59:34 PM
Modified: 9/20/2019 2:16:18 PM

WEST LEBANON — Laws prohibiting women from showing their bare breasts in public fail to take into account evolving views on gender identity and harm those in the trans community, according to Vermont’s first transgender candidate for governor.

Christine Hallquist, a Democrat who unsuccessfully challenged Republican Gov. Phil Scott in 2018, is among several activists calling for an end to laws banning toplessness.

She and famed photographer Spencer Tunick, along with the Grab Them by the Ballot campaign, filed a joint brief with the U.S. Supreme Court last month in support of three Free the Nipple protestors who were arrested in 2016 for going topless on a New Hampshire beach.

The Laconia, N.H., ordinance broken by the protestors discriminates against transgender people by imposing a single rule for men and another for women, and doesn’t account for people whose gender identities are either fluid or differ from the sex they were assigned at birth, they argue in the filing, which calls for the Supreme Court to take up the case.

“This finds the state creating, supporting, and enforcing regulations that prescribe traditional gender conformity, and penalizing women who depart from the traditional expectation,” their attorney Benjamin Nutley wrote in an Aug. 12 brief.

Hallquist said she first heard of the New Hampshire protests while working with Grab Them by the Ballot after the 2018 election. The photo campaign aims to increase voter turnout by encouraging an “open and frank discussion of female nudity.”

She said laws on the books promote the notion that nudity or toplessness is inherently sexual.

“It’s very clear to me that this is not a woman’s problem. This is a man’s problem,” Hallquist said in a phone interview on Tuesday. “Why do we have these laws? Because men can’t control their drives and emotions.”

Hallquist said she wouldn’t “have the courage to go topless on the beach,” as a trans woman.

“I’m already in trouble because I’m transgender, and then to throw that up on top of it just opens me up as a target,” she said.

In the joint brief, she argues that regulating one standard of modesty for men and another for women is unconstitutional. It’s also unfeasible, considering society’s changing views on gender.

For instance, if someone is born male but undergoes surgery and displays what many would consider female breasts, police may allow that person to go topless, the brief said. Meanwhile, someone born female whose breasts are surgically altered might receive a summons.

“It is doubtful that this is what the community envisioned,” the brief said. “And yet another approach would find citizens and law enforcement attempting to determine whether any given breast appeared to be female enough to be obscene unless covered.”

Attorney Eric Alan Isaacson, who is representing the Free the Nipple protestors, said the New Hampshire Legislature recently passed a law allowing nonbinary residents to mark their genders with an “x” on driver’s licenses.

That leaves the question of what police are supposed to do when they encounter topless people who don’t have genders on their photo IDs, he said in a phone interview.

“I think it’s an outdated, anachronistic, irrational ordinance,” Isaacson said of Laconia rule.

The New Hampshire Supreme Court didn’t agree with that assessment in a February ruling against the Free the Nipple protestors. In a 3-2 decision, the high court ruled in February that the Laconia ordinance didn’t infringe on constitutional rights to equal protection or hamper protected speech.

In response, the women petitioned the federal Supreme Court to review the case, and that court last week asked for a response from the New Hampshire Attorney General’s Office, signaling it might be interested in taking up the legal challenge.

Isaacson said the court’s move means either a justice or clerk took interest, adding that there’s a roughly 30% chance arguments would be heard next year.

Kate Spiner, spokeswoman for New Hampshire Attorney General’s Office, declined to comment on the case Tuesday. The office has not yet responded to the potential Supreme Court case, according to the court docket.

Hallquist, a former utility executive, said she hopes the Supreme Court will see that times are different, and recognize that bans on toplessness are antiquated.

“Courts recognize that just because we’ve always done it that way doesn’t mean it’s right,” she said. “I see this case as very important to highlight how we can improve as a country and as a society.”

Tim Camerato can be reached at or 603-727-3223.

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