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By Jonathan Stempel
(Reuters) - A divided federal appeals court said Chicago can enforce an ordinance banning women from baring their breasts in public.
By a 2-1 vote, the 7th U.S. Circuit Court of Appeals in Chicago late on Wednesday rejected an appeal by a woman who was ticketed for exposing her breasts on national "Go Topless Day."
The dissenting judge objected to the majority's "premature" decision to endorse a law that she said might reflect "longstanding biases" toward how women should look in public.
Sonoko Tagami, a supporter of GoTopless Inc, a nonprofit advocating for a woman's right to go bare-chested in public, sued Chicago after being ordered to pay a $100 fine plus $40 in costs over an Aug. 24, 2014, protest where she walked about with "opaque" body paint on her breasts.
Tagami said Chicago violated her constitutional free speech and equal protection rights by letting men, but not women, bare their breasts.
Writing for the majority, Circuit Judge Diane Sykes said Chicago had an important interest in "promoting traditional moral norms and public order," and restricting exposure of "intimate, erogenous, and private" body parts.
"The list of intimate body parts is longer for women than men, but that's wholly attributable to the basic physiological differences between the sexes," wrote Sykes, joined by Circuit Judge Frank Easterbrook.
Ilana Rovner, the dissenting judge, faulted the majority for "nakedly" declaring that Tagami's nudity, by itself, was not political protest.
"Tagami was not sunbathing topless to even her tan lines, swinging topless on a light post to earn money, streaking across a football field to appear on television, or even nursing a baby," Rovner wrote. "Her conduct had but one purpose - to engage in a political protest challenging the city's ordinance on indecent exposure."
Rovner said Tagami deserves her day in court, and a lower court judge should not have dismissed her lawsuit.
"Do I relish the prospect of seeing bare-chested women in public?" Rovner wrote. "As a private citizen, I surely do not. (I would give the same answer with respect to bare-chested men.)
"But I speak here strictly as a judge, with the responsibility to accord Tagami her constitutional rights."
Tagami's lawyer, Joel Flaxman, in an interview said his client was disappointed and reviewing her legal options. "The majority went way too far in accepting the city's justification of promoting traditional moral norms and public order," he said.
Bill McCaffrey, a spokesman for Chicago's law department, welcomed the decision. "These laws have a long history, and they are also extremely common," he said.
The case is Tagami v City of Chicago et al, 7th U.S. Circuit Court of Appeals, No. 16-1441.
(Reporting by Jonathan Stempel in New York; Editing by Lisa Von Ahn and Tom Brown)