Human rights activists and gay and lesbian advocacy groups are urging appellate court judges to overturn a previous court's decision to dismiss a discrimination lawsuit brought by Will Walters, a gay man who was arrested in 2011 during Hillcrest’s Pride parade for violating the city's public nudity laws by wearing a leather kilt.
Walters and his attorney Chris Morris argue that San Diego police officers discriminated against Walters, and the LGBT community as a whole, by adopting a more stringent nudity policy at the parade while refusing to enforce such policies at San Diego beaches and during popular events such as Fiesta Island’s Over the Line tournament, downtown’s Mardi Gras, and the annual Comic-Con.
At issue was Walters’s homemade leather kilt, made of 12-inch-long and 8-inch-wide flaps in both front and back covering a thong. During the parade, officers apprehended Walters because, they claimed, the sides of his buttocks were exposed.
Walters and his attorney say the leather kilt covered far more than some g-string or thong bikinis that some women wear at the beach; the difference is that Walters is a gay man.
According to a deposition from Lt. David Nieslit, head of special events for the San Diego Police Department and the first officer to contact Walters at the parade, the definition of nudity is open to interpretation. In Walters’s case, seeing the sides of his buttocks was enough to issue a citation...and enough to transport him to jail after he refused to sign it.
"The fact that I could see the side of his buttocks and more of his buttocks is what caused me to contact him," said Lt. Nieslit in a deposition.
"...He could have — I mean I'll just give you examples of what other people did, because I probably talked to 12 or 15 people that same day that were in various forms of disclothing [sic] or whatever. I saw people put on — wrap T-shirts around their waists, put on a pair of shorts, put on pants, wrap a sweatshirt around their waist. Bottom line is I didn't care how, if you could cover yourself, that was my goal. That was our goal that day, not just with Mr. Walters, but anybody we contacted."
In a letter to the Ninth District Court of Appeals obtained by the Reader, the Human Rights Campaign, activist group Lambda Legal, and Gay and Lesbian Advocates and Defenders believe that adopting a special policy at the Pride parade as well as adding interpretation to the mix violates Fourteenth Amendment rights.
"If left to stand the ruling by the district court in this matter has the potential to lay a new foundation upon which an opposing bulwark may be built that would not only protect existing discriminatory practices, but...may very well provide a new basis to summarily adjudicate legitimate Fourteenth Amendment claims by members of historically marginalized groups."
According to the appeal, and reiterated in the letter from the human rights activists, a new Special Events Nudity Policy was adopted at the behest of Lt. Nieslit in 2011, just months before the parade was set to begin. During a meeting with parade organizers, Lt. Nieslit announced changes to the old policy in order to crack down on increased nudity at event.
"In this case, there was material evidence of a discriminatory intent in the adoption of the new Special Events Nudity Policy. Specifically, Lieutenant Nieslit, the San Diego Police Department’s chief law enforcement agent for all 'special events' in the city, admitted that the policy was instituted by him specifically to decrease the level of nudity at Gay Pride. While Nieslit and his team contacted [ten to fifteen] attendees wearing 'thongs,' there was no evidence that any thong-wearing attendees at any of the other special events were contacted or detained. In fact, the pictures of these same officers standing next to thong-wearing attendees at other special events is particularly telling; the stricter reading of the Municipal Code was adopted expressly for, and only enforced at, Gay Pride."
By allowing the district court's ruling to stand, reads the letter, appellate court judges will jeopardize constitutional rights provided under the Equal Protection Clause included in the Fourteenth Amendment.
"There can be little argument that the implementation of one standard for ‘public nudity’ at gay events and yet another standard for ‘public nudity’ at straight events, standards that in this case were adopted by the same commanding officer, violates the Equal Protection Clause. If allowed to stand, this discriminatory enforcement policy sends the clear signal to the gay community that their legs, hips, and thighs are somehow offensive and should be covered, but the legs, hips and thighs of straight people are not."
Appellate court judges will consider the appeal sometime in April.