AG: Everyone has freedom to go topless on Nantucket beaches

NANTUCKET — For anyone who enjoys the free ebb and flow of ocean air and currents over their bare skin, the coast is now clear for people of all genders to legally go topless on Nantucket beaches.

Seven months after Nantucket voters approved a bylaw amendment specifically to allow all people — including women — freely to eschew torso coverings while spending time on the island's beaches, Attorney General Maura Healey has given the change her seal of approval. Her endorsement was required before the so-called "Gender Equity on Beaches" amendment could become Nantucket law.

Nantucket is the first town in Massachusetts specifically to address this issue in its bylaws, giving beach goers a blanket green light to go topless on all of its beaches if they choose. On other beaches in the Cape and islands region, there are sections where nude sunbathing is informally accepted. There are also beaches where it is specifically stated in the beach rules that nude sunbathing is not allowed, or that it is allowed only beyond the first 1,500 feet of the beach entrance, as is the case with the Vineyard's Lucy Vincent Beach.

In a six-page determination issued on Tuesday, Healey noted, "the town has the authority to choose what activities it will allow on town beaches, and we must approve any bylaw reflecting such choice unless the bylaw poses a clearconflict with the Constitution or laws of the Commonwealth."

Based on this standard, she approved the bylaw, which will apply to all Nantucket beaches. The island has 10 public beaches, plus numerous private beaches that bring the total to 26.

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Healey's decision emphasizes that her approval does not imply agreement or disagreement with any policy views that led to the passage of the bylaw and that she has "no power to disapprove a bylaw merely because a town, in comparison to the rest of the state, has chosen a novel approach."

Voters at Nantucket's May town meeting gave thumbs-up to the "Gender Equity on Beaches" bylaw by an 85-vote margin, with 327 voting in favor of the change and 242 voting in opposition to it. The amendment was proposed by Nantucket resident Dorothy Stover, a seventh-generation islander who believes everyone, regardless of gender, should be able to freely go topless on the beaches.

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"I am so excited and relieved," Stover said Wednesday, reacting to the news. "For months I have had community members reaching out in regards to the AG making her decision, and now we finally have our answer that top freedom for all on island beaches has fully passed and is officially a Nantucket bylaw."

In February, Stover shared with the Cape Cod Times that while visiting the beach last summer she had wanted to lay out topless, "and I thought, 'why can't I do that?'"

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She said the general acceptance of men and boys going bare-chested, while women's toplessness has been seen as unacceptable, is "really antiquated" and is inequality.

Instead of just shrugging this question off, Stover developed her proposal to change the Nantucket bylaws specifically to state that anyone could go topless on island beaches. She successfully got her amendment on the town meeting agenda through a citizens' petition.

"I worked on the bylaw for about three months. My sister, AdaRuth Waig, helped me do the law research," she said Wednesday.

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The reaction from the island community, she said, "has been more in favor than opposing."

"I have found that community members have been educating each other, and some members who opposed now support it," Stover said.

Both the Nantucket Select Board and Finance Committee supported placing Stover's amendment on the town meeting agenda. The Finance Committee, in its town meeting recommendations, noted that Stover "made a reasonable argument that topless sunbathing is a matter of gender equality that is governed unequally by town and state laws."

Nantucket beaches amendment 'in order to promote equity for all'

The amendment adds language to the Nantucket code of laws that reads: "In order to promote equality for all persons, any person shall be allowed to be topless on any public or private beach within the town of Nantucket."

The amended bylaw is one that regulates activities on the island's public and private beaches, including among them recreational activities, and those that impact scenic views or produce excessive noise, in addition to activities that may impact public safety and welfare.

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State law under Chapter 272 is ambiguous on the topic. While it does not specifically prohibit female toplessness at beaches, it also does not expressly allow it, and it defines exposure of "the human female breast below a certain point as "nudity."

Healey noted that under the state's Home Rule Amendment, adopted in 1966, towns have the authority to adopt bylaws to direct and manage their "prudential affairs." Many towns have enacted bylaws regulating conduct on their beaches and waterways, "and courts have upheld those bylaws unless there is a sharp conflict with state law."

She said Nantucket's new gender equity amendment "is but the most recent example of Nantucket deciding what is and what is not permissible on public and private beaches in the town."

"Like all towns in Massachusetts, Nantucket has long held the authority to so decide, and has exercised it on numerous occasions," Healey found.

Nantucket’s prior regulation of beach activities includes bylaws regulating, among other things, the use of motor vehicles, prohibiting alcohol and marijuana consumption, overnight camping on town beaches, prohibiting building campfires and alcohol consumption by groups of 10 or more people at night on all beaches.

The attorney general said some opponents have suggested that the amendment creates a conflict with two areas of state law "purporting to regulate conduct that can under certain circumstances involve the exposure of breasts" — specifically, sections of general law chapter 272, which deal with open and gross lewdness and lascivious behavior, and which prohibit indecent exposure. Under these sections, those convicted of open and gross lewdness and lascivious behavior may face up to three years in prison and a fine of up to $300.

"But neither statute makes toplessness at a beach, without more, a violation of state law," Healey said.

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She found that for the exposure of breasts to violate the law "it would have to be accompanied by additional conduct." Moreover, a conviction under the indecent exposure statute “requires an intentional act of lewd exposure, offensive to one or more persons.”

Healey further noted that the Massachusetts Supreme Judicial Court has recognized that there is ambiguity as to whether the intentional exposure of female breasts is covered by the law.

For these reasons, she said, her office determined that "this argument does not provide grounds for us to disapprove the bylaw."

According to the town of Nantucket, the town's traditional practice with regard to beach nudity up until now has been to investigate any complaints of "open and gross lewdness and lascivious behavior" filed with the police department in accordance with existing state law. The amended bylaw now eliminates any ambiguity with regard to females going topless on the beaches.

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In a document posted on its website, the town stressed that the gender equity amendment is "specific to beaches, not beach parking lots or concession areas or playgrounds that are separated from a beach by a walkway or dunes or a boardwalk or some other visible separation."

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While she approved the bylaw amendment, Healey does suggest that the town consider a future amendment specifically to define the term "public or private beach" as it applies to the gender equity rule, since other sections of the town's bylaws also lay out the definitions and differentiate between "beach" and "coastal area."

Since Healey's decision was made public Tuesday, the town of Nantucket has added a notice on its website asking that island residents and visitors "be patient and respectful as the island adapts to this first-of-its-kind bylaw in the Commonwealth of Massachusetts."

Contact Heather McCarron at hmccarron@capecodonline.com.

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This article originally appeared on Cape Cod Times: Nantucket bylaw: first in MA to allow bare chests for women at beaches