Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792

Fort Collins enacted a public-nudity ordinance banning females (age ≥10) from exposing breasts below the areola in public while not restricting male toplessness; breastfeeding expressly exempted.
Plaintiffs (Free the Nipple and two women) sued, alleging federal Equal Protection and First Amendment violations and a Colorado Equal Rights Amendment claim; they sought a preliminary injunction and a declaratory judgment.
The district court dismissed the First Amendment claim but allowed the Equal Protection and state ERA claims to proceed, then granted a preliminary injunction barring enforcement of the ordinance insofar as it prohibited women, but not men, from knowingly exposing breasts in public.
The City appealed the interlocutory injunction under 28 U.S.C. § 1292(a)(1); the Tenth Circuit reviewed for abuse of discretion (factual findings for clear error; legal conclusions de novo).
The panel framed the dispute as an Equal Protection challenge to an on-its-face gender classification and evaluated the injunction under heightened intermediate-scrutiny principles applicable to gender-based distinctions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the female-only topless ban violates the Equal Protection Clause	Ordinance discriminates on its face by singling out women and perpetuates sex-stereotypes; fails intermediate scrutiny	Physical/sexual differences of female breasts and public-order, child-protection, and traffic-safety interests justify the classification	Court: Plaintiffs likely to succeed; ordinance fails intermediate scrutiny because justifications rest on stereotypes and are not substantially related to important objectives
Whether Plaintiffs demonstrated irreparable injury to justify a preliminary injunction	Deprivation of constitutional (Equal Protection) right constitutes irreparable harm	City conceded constitutional-injury principle but argued lack of analogous precedent for this specific harm	Court: Constitutional harm = irreparable injury; factor satisfied
Whether balance of harms favors injunction	Temporary loss of constitutional right outweighs the City's interest in enforcing the law	City asserted public interest and legislative support for ordinance	Court: Balance favors Plaintiffs; injunction appropriate (even under "strong showing" standard)
Whether injunction is contrary to public interest	Protecting constitutional rights serves the public interest	City argued public morality and order weigh against injunction	Court: Public interest favors preventing constitutional violations; factor satisfied

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (Equal Protection requires similar treatment of similarly situated persons)
Clark v. Jeter, 486 U.S. 456 (1988) (rational-basis baseline for classifications)
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (gender-based classifications require "exceedingly persuasive justification")
United States v. Virginia, 518 U.S. 515 (1996) (gender classifications require intermediate scrutiny; skepticism of stereotypes)
Craig v. Boren, 429 U.S. 190 (1976) (articulation of intermediate scrutiny for gender classifications)
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) (all gender-based classifications subject to heightened scrutiny)
Parham v. Hughes, 441 U.S. 347 (1979) (earlier treatment of invidiousness threshold in gender cases discussed and contextualized)
Nguyen v. INS, 533 U.S. 53 (2001) (upholding gender-based distinction tied to biological differences where substantially related to objective)