Independent New Hampshire Journalism · Northfield, NH

Topless Is Legal in New Hampshire. Laconia Made the Female Nipple a Crime Anyway.

State law treats the bare male and female chest the same. Then one city wrote an ordinance that singles out women, and in 2019 the state’s highest court ruled that wasn’t sex discrimination.

On Memorial Day weekend in 2016, Ginger Pierro went to a beach in Laconia and did yoga, topless. A bystander called the police. Officers arrived, told her a city ordinance made her bare chest illegal, and asked her to put a shirt on. She kept moving through her poses. She was arrested. Three days later, Heidi Lilley and Kia Sinclair walked onto Weirs Beach topless to protest that arrest, and were arrested too.

Here is the part that should stop you. Nothing in New Hampshire state law made what any of those women did a crime. The state’s indecent exposure statute reaches genitals, not breasts. A man and a woman standing bare-chested on the same stretch of sand are, as far as Concord is concerned, doing the identical lawful thing. What put handcuffs on those three women was not the State of New Hampshire. It was the City of Laconia. And in 2019, the New Hampshire Supreme Court held that a city criminalizing the female nipple, and only the female nipple, is not discrimination based on sex.

What state law says

The law most people assume exists does not. RSA 645:1, the indecent exposure and lewdness statute, makes it a misdemeanor to expose one’s genitals or perform an act of gross lewdness in public under circumstances likely to cause affront or alarm. Breasts are not genitals, and the statute never mentions them. New Hampshire has never passed a law that criminalizes a woman for being topless.

That silence is not an accident, and the state has reinforced it elsewhere. RSA 132:10-d, on the books since 1999, says plainly that breastfeeding a child is not indecent exposure and that limiting a mother’s right to nurse is discriminatory. The Legislature knows how to write rules about exposed breasts when it wants one. On the broader question of women going topless, it has repeatedly chosen not to.

So the default across the state is simple: legal. A woman can sunbathe topless at Hampton Beach, a state beach, the same as the man on the next towel. Hampton officials have said for years that they follow the state’s lead rather than invent their own rule, and the annual Go Topless Day gatherings on that beach have come and gone without anyone being charged.

How a city criminalizes what the state won’t

If the state doesn’t ban it, how does Laconia? The answer is a grant of municipal power written in the 1800s, stretched to reach the female nipple in the 2000s.

When a beachgoer was first cited under a Gilford town ordinance, a judge threw the case out. Towns, the court reasoned, were never handed authority by the Legislature to police topless sunbathing, and a town cannot make criminal what the state has declined to criminalize. For a moment that looked like the end of it.

Laconia is not a town. It is a city, and cities draw their powers from a different statute: RSA 47:17, a long list of subjects a city council “shall have power” to regulate. Tucked into the same paragraph that authorizes a city to restrain “vagrants, mendicants, street beggars, strolling musicians, and common prostitutes” sits the power to regulate the clothing to be worn by bathers and swimmers. That clause, drafted in another century for another purpose, is what a New Hampshire court used to uphold a modern ban on the female breast.

The ruling: a law that punishes women doesn’t classify by sex

State v. Lilley reached the New Hampshire Supreme Court in 2019. The Laconia ordinance bans appearing nude in a public place and defines nudity to include exposing any part of the female nipple. By its own text, that definition applies to women and not to men. The three defendants argued the obvious point: a law you can only break by having a female body discriminates on the basis of sex, and it tramples both the Equal Rights Amendment in the New Hampshire Constitution and free-speech protections.

The court disagreed, 3 to 2. The majority held that the ordinance “does not classify on the basis of gender.” It reasoned that the sexes are not interchangeable when it comes to the traditional understanding of public nudity, found that Laconia had authority to pass the rule under RSA 47:17, found that RSA 645:1 did not preempt it, and found that going topless on a beach was conduct, not protected speech. The convictions stood. Each woman had been given a suspended $100 fine, conditioned on good behavior.

Two justices dissented. They agreed with the majority on most of the case but not on this: a rule that singles out the female breast treats men and women differently, they wrote, and a court should call it what it is rather than pretend the classification isn’t there. They were outvoted. Sinclair had testified that she purposely engaged in civil disobedience, fully aware of the ordinance and protesting Pierro’s arrest. Afterward, the women’s attorney, Dan Hynes, said the court had effectively made it “a crime to be female.”

The classification finding did the real work. Sex-based laws normally draw heightened constitutional scrutiny, the kind of demanding review that forces a government to show a real and substantial justification for treating men and women differently. By holding that the ordinance drew no sex line at all, the majority never had to apply that test, and a rule that lists only the female nipple sailed through the lowest standard a court can use. The dissent’s path led somewhere harder for the city: call the line what it is, apply the tougher standard, and Laconia’s stated worry about beachgoer complaints has to carry far more weight than it ever did at trial.

In January 2020, the United States Supreme Court declined to hear the appeal, leaving the New Hampshire decision in place and the convictions final.

A different court, the same law, the opposite answer

The New Hampshire result was not inevitable. A federal appeals court looking at a nearly identical ordinance the same year reached the opposite conclusion.

In Free the Nipple-Fort Collins v. City of Fort Collins, decided in 2019, the U.S. Court of Appeals for the Tenth Circuit struck down a Colorado city’s ban on female toplessness. That ordinance, the court held, created a gender classification on its face, and the classification could not survive equal-protection review. Where the New Hampshire majority saw no sex line, the Tenth Circuit saw it plainly, applied the heightened standard such a line demands, and found the city’s justifications too thin to clear it. Fort Collins repealed its ban and, by press accounts, had already spent more than $300,000 defending it.

So two appellate courts examined functionally the same law within the same twelve months. One said it plainly discriminated against women. The other said it didn’t classify by sex at all. That split is exactly why the New Hampshire women asked the U.S. Supreme Court to step in, and exactly the kind of split the Court left sitting there when it passed on the case.

The Legislature already said no to a statewide ban

None of this is the product of an elected majority wanting a crackdown. The opposite is closer to the truth. In 2016, two state representatives introduced a bill to make it a misdemeanor for a woman to expose her breasts in public with “reckless disregard” for whether it offended anyone. The House voted it down.

The committee that recommended killing the bill was not subtle about why.

The same committee warned that the state would lose in court on free-speech grounds and would spend public money doing it, after hearing testimony that violations could be treated as protected political expression. Lawmakers heard, correctly, that a statewide ban was both bad policy and a legal loser, and they walked away. The patchwork now in force, legal across the state but criminal inside one city, is what their inaction left standing next to Laconia’s ordinance.

What it means if you’re standing on the sand

Strip away the history and you are left with a rule that turns entirely on geography. Topless and female is legal at Hampton Beach and on nearly every other public shore in New Hampshire. It is a citable offense in Laconia. The line between a lawful afternoon and a criminal one is not drawn by what a person does, because the conduct is identical either way. It is drawn by whether the local board where you parked decided the female nipple offends them. Gilford’s ordinance was knocked down in court, though that history did not stop officers there from leaning on trespass charges instead. Because municipal codes change, anyone planning to test this should pull the current ordinance for the specific city or town first.

That is the absurdity worth naming, and it has nothing to do with whether you personally want to see bare chests at the beach. The objection is not aesthetic. New Hampshire built a system in which the element that converts a legal act into a crime is the sex of the person performing it, and when three women asked the state’s highest court whether that counted as discrimination, the court said no. A man and a woman can stand side by side doing precisely the same thing, and the law reaches only one of them. We can keep calling that decency. It is really a decision about who gets to exist in public without first asking permission.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Every factual claim above was verified against primary sources before publication; see the fact-check table. The Fort Collins litigation cost ($300,000-plus) and the “Hampton follows state law” practice are attributed to press reporting and local officials rather than to a single official record, and are marked ATTRIBUTED. Municipal ordinances change: the status of any town or city ban should be checked against the current local code before relying on it. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.