concurring and dissenting.
I concur in the conclusion and result reached by the majority because I agree that Fantasy Sports failed to properly obtain a Specialized Certificate of Occupancy and operated a sexually oriented business within 1,000 feet of a residential neighborhood. However, I believe that paragraph “d” of Section 18A(G)(19) of the Fort Worth City Code violates the Texas Equal Rights Amendment (“TERA”) and is therefore unconstitutional.
DISCUSSION
The Ordinance and the Texas Equal Rights Amendment
Under the Comprehensive Zoning Ordinance (“CZO”), “Nudity or state of nudity” is defined as:
appearing while any of the following portions of the human body are less than completely and opaquely covered:
(a) Genitals, whether or not in a state of sexual arousal; or
(b) Pubic region or pubic hair; or
(e) Buttock(s); or
(d) The portions of the female breast(s) beginning from a point immediately above the top of the areola and continuing downward to the lowest portion of the breast(s); or
(e) any combination of the above.1
*934In its fourth point of error, Fantasy Sports claims the definition of “nudity” in section 18A requires us to find that the ordinance violates the Equal Rights Amendment of the Texas Constitution.2 Specifically, Fantasy Sports argues that the inclusion of “[t]he portions of the female breast(s)” in the definition without inclusion of a similar provision regulating male breasts, discriminates against women.3 TERA provides that “[e]quality under the law shall not be denied or abridged because of sex.”4 Under TERA, classifications based on gender are suspect and subject to strict scrutiny.5
To analyze a classification under TERA, we must apply In re McLean’s two step analysis. First, we should determine whether the law discriminates against one sex solely on the basis of gender.6 Second, if we find that the law discriminates based solely on gender, we should only uphold it if the proponent of the law can prove that there is no other manner to protect the State’s compelling interest in the law.7
1) The Burden of Proof
The Williams court previously held that “[t]he burden of proof is initially on the complainant to prove such discrimination exists.” 8 The City relies on a Dallas Court of Appeals case in contending that this statement requires Fantasy Sports to prove that the CZO discriminates against women based solely on gender.9 I believe the Dallas Court of Appeals opinion in MJB misconstrued Williams.
In In re McLean, the Supreme Court made it clear that the trial court was to determine whether the law discriminated based solely on gender. The Supreme Court did not, however, hold that the complainant had a burden beyond putting the discriminatory language into evidence. In fact, the Supreme Court specifically examined the law in question to determine if the first prong of the analysis was met.10 The Supreme Court did not require the plaintiff in McLean to then bring forth any evidence of impermissible reasons for the statutory language.
Indeed, this is the only interpretation of TERA and McLean that makes sense. To hold otherwise would require Fantasy Sports to somehow prove that the City had discriminatory intent when it passed the ordinance. This burden would be so severe that it is hard to imagine a plaintiff who could meet it. To impose this severe burden on the plaintiff would render TERA’s guarantee of strict scrutiny for gender classifications useless.11
*935Fantasy Sports’s burden to “prove such discrimination exists” was satisfied when it put § 18A into evidence12 because the discriminatory language was clear on the face of the ordinance. Thus, I would specifically hold that Fantasy Sports did not lose its TERA claim by failing to meet its “burden of proof.”
2) Williams
In Williams, this court held that the prior ordinance’s definition of “state of nudity,” which specified “female breasts” but not “male breasts,”13 violated TERA as a matter of law.14 We have since reaffirmed our endorsement of the Williams decision in dicta.15
In Williams, this court previously held that “the ordinance discriminates against women on its face in its definition of nudity.”16 Thus, the Williams court held that the ordinance discriminates solely on the basis of gender.17 After ruling on the first prong of the analysis in favor of Williams by *936finding that the ordinance discriminated against females based solely on gender, the Williams court found that the City had not proved that the ordinance ■ was the only means of achieving a compelling state interest.18 “[T]he City offered no evidence about .., how [physical and psychological differences between men and women] relate to the ordinance’s goal of preventing secondary neighborhood effects.”19 Therefore, the court concluded that the ordinance violated TERA.20 In particular, the Mandate in Williams declared:
[i]t is ... ordered, adjudged and decreed that the judgment of the trial court is modified to reflect that section lB(9)(c) of Ordinance No. 9957 of the City of Fort Worth is unconstitutional in its application to adult nightclubs and bars. Specifically, we declare that the following portion of the definition of “NUDITY OR STATE OF NUDITY” as applied to adult nightclubs and bars is unconstitutional and void: “c) Female breast or breasts below a point immediately above the top of the areola.”
THE APPLICATION OF THE LAW TO THIS CASE
In this case, the City presented evidence that male breasts are different from female breasts. The trial court accepted this evidence in the following Findings of Fact:
221. The Ordinances’ differentiation between sexes exists on account of well-recognized physiological, psychological, and cultural differences between the male chest and the female breast.
222. Internal and external physiological differences exist between the female breast and the male chest.
228. Cultural reactions and norms differ between the exposure of the female breast as compared to exposure of the male chest.
224.Current cultural norms consider exposure of the female breast with no other attendant nudity as nudity.
225. Current cultural norms do not consider exposure of the male chest with no other attendant nudity as nudity.
226. Human sexuality differences exist between exposure of the female breast and the male chest.
Since submission, Fantasy Sports has filed an amended brief. In the amended brief they challenge the findings of fact individually-
1) Discrimination Based “Solely” on Gender
The City contends that the trial court’s findings of fact require a legal conclusion that the definition of nudity does not discriminate based solely on gender. Rather, the City would have us find that “[t]he differentiation exists on account of well-recognized physiological, psychological, and cultural differences between the male chest and the female breast.” Although I accept the trial court’s findings of fact, I disagree with the City’s contention.
McLean makes it clear that courts should look to the statute in question in determining whether it violates the first prong of the analysis. In McLean, the court took it upon itself to “examine the Family Code” sections at issue to determine whether they discriminate based solely on gender.21 The court in McLean did not consider the State’s evidence concerning the reasons for the discriminatory language until it reached the second prong of the analysis, after it had found that the statute was discriminatory on its face.22
At best, the City’s evidence goes to prove that it has a “compelling” interest in regulating sexually oriented businesses. Such evidence does not apply to the first prong of the analysis where a court determines whether the discrimination is based solely on gender. As one court has noted, "[a]ny classification based upon sex is a suspect classification, and any law or regulation that classifies persons *937for different treatment on the basis of their sex is subject to strictest judicial scrutiny.”23
Accordingly, I believe the section 18A definition of “nudity” is facially discriminatory because it singles out females for different treatment than males.24 After having found that the CZO discriminates based solely on gender, the second prong of the analysis must be addressed to determine whether the discriminatory portion of the definition of nudity is the only means to achieve a compelling state interest.
2) Compelling State Interest
Because the City believes that Fantasy Sports has failed to prove that the section 18A definition of nudity does not meet the first prong of the analysis, i.e., that the distinction is not based solely on gender, it does not address the issue of whether the definition is the only means to achieve a compelling state interest. I disagree.
The trial court found that the gender classification was “required” to prevent the adverse secondary effects associated with sexually oriented businesses. While the City has a compelling interest in regulating sexually oriented businesses,251 cannot agree that the only means to achieve that goal is by preventing women from dancing topless while not preventing men from doing the same.
The City has failed to present evidence linking the distinction in the ordinance between males and females to stopping the negative secondary effects of sexually oriented businesses.26 Under the ordinance, a bar featuring male dancers wearing only briefs would not come within the definition of sexually oriented business. As noted in Williams, “we have found no reason why banning bars which regularly feature either male or female topless dancers within the 1,000 feet limits would not effectively accomplish the City’s goals.”27 Therefore, there is at least one other means to achieve the City’s compelling interest in regulating the adverse secondary effects of sexually oriented businesses.
Because the City has produced no evidence that permitting topless males to dance while prohibiting topless females from doing so is the only means of controlling the adverse secondary effects of sexually oriented businesses, I believe that the City has not satisfied its burden to uphold the definition of *938“nudity” under the McLean analysis.28 Accordingly, I would sustain Fantasy Sports’s point of error four as to the provision defining nudity or state of nudity that relates only to the female breast.
CONCLUSION
While recognizing the general authority of a city to regulate sexually oriented businesses through zoning ordinances, I would only hold that if the City is going to place zoning restrictions on businesses such as Fantasy Sports, it must do so in a gender neutral manner.
I also emphasize that I would not reverse the portions of the injunction requiring Fantasy Sports to obtain a SCO before operating a sexually oriented business in Fort Worth.
The trial court entered a conclusion of law that “[t]he state of undress of the female dancers performing at Respondents’ business ... constituted ‘nudity’ ... under the terms and definitions of the Ordinances.” [Emphasis added.] Noticeably, the court did not specify that only the exposure of breasts at Fantasy Sports constituted nudity; the finding that “all or substantially all of [the dancers’] buttocks” were uncovered leads me to believe that Fantasy Sports came within the definition of sexually oriented business because it featured nudity in the form of “less than completely and opaquely covered ... buttock(s).”29 Although Fantasy Sports challenged the specific findings and fact or the finding of law that the dancers’ “state of undress” constituted “nudity” in their amended brief, there is sufficient evidence to support the court’s findings and conclusions. Since Fantasy Sports did not claim that the definition of nudity specifying “buttock(s)” violated any constitutional or statutory provision, I would leave the injunction intact.
Therefore, I would modify the judgment of the trial court with respect to Fantasy Sports’s counterclaim for declaratory relief to reflect that section 18A(G)(19)(d) of Fort Worth’s Comprehensive Zoning Ordinance, No. 3011, is unconstitutional because it discriminates against women in violation of the Texas Equal Rights Amendment, Tex. Const. art. I, § 3a. As modified, I would affirm the judgment of the trial court.
. Tex. Const, art. I, § 3a. Fort Worth, Tex, City Code app. A, Ord. 3011 § 18A(G)(19) (emphasis added).
. Tex. Const, art. I, § 3a. Although Fantasy Sports’s fourth point of error contends that the “ordinance denies women equal protection," the argument and authority under that point is directed to a TERA claim. Fantasy Sports specifically cites TERA in the first sentence of its brief under this point. Accordingly, I will not address an Equal Protection claim.
. See City Code § 18A(G)(19)(d) (emphasis added).
. Tex. Const, art. I, § 3a.
. In re McLean, 725 S.W.2d 696, 698 (Tex. 1987). While TERA requires strict scrutiny, the Equal Protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the United States Constitution require only intermediate scrutiny in gender discrimination cases. SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1279-80 (5th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). This is one of the situations where the Texas Constitution provides more protection than the United States Constitution. See In re McLean, 725 S.W.2d at 697 (TERA provides more specific protection than either Due Process or Equal Protection guarantees of Texas or United States constitutions).
. In re McLean, 725 S.W.2d at 697.
. Id. at 698.
. Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex.App. — Fort Worth 1989, writ denied).
. See MJR’s Fare of Dallas Inc. v. City of Dallas, 792 S.W.2d 569, 575 (Tex.App. — Dallas 1990, writ denied) (op. on reh’g) (rejecting claim because bar owner “failed to meet its burden of proving that law discriminated against females solely on the basis of gender”).
. See In re McLean, 725 S.W.2d at 697.
. The federal analog of strict scrutiny under TERA is equal protection analysis of racial classifications and discrimination. Under the Equal Protection clause, a law that discriminates against people based on race is subject to strict scrutiny. See generally 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.3, 15-16 (2d *935ed.1992) (discussing strict scrutiny standard). Further, if the discrimination is clear from the face of the law, courts will apply the strict scrutiny standard without any further inquiry into the intent of the drafters. See generally R. Rotunda & J. Nowak at § 18.4, 41-42 (discussing proof of discrimination). However, if a facially neutral statute is discriminatory in its application, courts must look to the intent behind the statute. See generally id.
Were this a case where discrimination was not apparent from the language of the ordinance, but rather where a facially neutral ordinance resulted in discriminatoiy effects, the plaintiff would have a higher burden of proving that the discrimination was based solely on gender.
. Specifically, Fantasy Sports pled in its First Supplemental Answer and Counterclaim:
The City of Fort Worth's zoning ordinance is unconstitutional because it violates the Equal Rights Amendment to the Texas Constitution, Article 1, Section 3a.. [sic] The current definition contained in the City's Ordinances prohibit female dancers such as Staci Jones from exposing any portion of their breasts from the top of the aeróla [sic] to the bottom of the breast under Sports Fantasy's current license but do not prohibit male dancers from exposing any portion of their breasts.
Further, the ordinance in question was offered and admitted into evidence.
. In particular, the ordinance in effect at the time prohibited "sexually oriented business[es]” from operating within 1,000 feet of a church, school, residentially zoned property, or a public park. Fort Worth, Tex., City Code Ord. 9957 § 1(C)(1) (repealed). "Sexually oriented business" was defined to include "adult cabaret.” Fort Worth, Tex., City Code Ord. 9957 § 1(B)(11) (repealed). "Adult Cabaret” was defined as: "a nightclub, bar, restaurant, or similar commercial establishment which regularly features: (a) persons who appear in a state of nudity.”' Fort Worth, Tex., City Code Ord. 9957 § 1(B)(3)(a) (repealed). "Nudity or state of nudity" was defined as:
less than completely and opaquely covered:
a)Human genitals, pubic region or pubic hair,
b) Human buttock,
c)Female breast or breasts below a point immediately above the top of the areola, or
d) any combination of the foregoing.
Fort Worth, Tex., City Code Ord. 9957 § 1(B)(9) (repealed) (emphasis added).
. Williams, 782 S.W.2d at 297. The City claims that it amended the CZO "to cure the deficiencies found by this court to exist in Ordinance 9957.” However, the definition of nudity specifying "female breast" found unconstitutional in Williams is repeated nearly verbatim in the new ordinance. Compare City Code Ord. 3011 § 18A(G)(19); with City Code Ord. 9957 § 1(B)(9) (repealed).
. Maloy v. City of Lewisville, 848 S.W.2d 380, 384 (Tex.App. — Fort Worth 1993, no writ) (facially discriminatory definition of nudity would be unconstitutional under TERA if not for procedural default).
. Williams, 782 S.W.2d at 298. The Dallas court has reached the opposite result in analyzing a nearly identical definition of "nudity or state of nudity.” MJR, 792 S.W.2d at 575; see also Messina v. State, 904 S.W.2d 178 (Tex. App. — Dallas 1995, no pet.) (upholding MJR under doctrine of stare decisis). In MJR, the City presented expert testimony that physiological and sexual distinctions exist between male and female breasts, that female breasts differ both internally and externally from male breasts, and the female breast, unlike the male breast, is a mammary gland. MJR, 792 S.W.2d at 575. Based on this evidence, the court found that the City had proved that the definition did not discriminate solely on the basis of gender. Id. The MJR court never reached the second prong of the analysis to determine whether the definition was the only means to achieve a compelling state interest. Therefore, I disagree with MJR’s reasoning because, as I discuss below, this type of evidence does not show that a facially discriminatory ordinance does not discriminate solely on the basis of gender.
. Id. at 297.
. Id. at 297-98.
. Id. at 296 n. 2.
. Id. at 298.
. In re McLean, 725 S.W.2d at 697.
. See id.
. Mercer v. Board of Trustees, 538 S.W.2d 201, 206 (Tex.App. — Houston [14th Dist.] 1976, writ ref'd n.r.e.) (emphasis added).
. See Williams, 782 S.W.2d at 297; McLean, 725 S.W.2d at 697; see also Malay, 848 S.W.2d at 384 (facially discriminatory definition of "nudity” discriminatoiy as a matter of law).
. I emphasize that to the extent that the City does have a compelling interest, it is not based on the physiological differences between men and women. As Justice Devany of the Dallas Court noted in his dissent in Messina, allowing evidence of the physical differences between men and women with no other evidence to defeat a TERA claim
would ... allow the State to blow life into [a] facially unconstitutional statute by producing experts that can explain the flesh-and-blood composition of the female breast. Such proof is but a detailed biological explanation of one of the fundamental differences between men and women. Such an explanation of any difference between men and women does not change the concept of the Texas Constitution which strictly prohibits any legislation that would discriminate based upon gender....
Compare, for example, a case where discrimination because of race is prohibited by the Texas Constitution. Common sense tells us that no explanation of the composition or cause of skin pigmentation will save any statute that discriminates because of race.
Messina, 904 S.W.2d at 190 (Devany, J. dissenting).
. I realize that the trial court entered a finding of fact that "a commercial business featuring the exposure of the female breast relates to and contributes to the adverse secondary effects that the Ordinances seek to control.” But, this finding does not necessarily mean that no adverse secondary effects result from the exposure of a male chest in the context of a sexually oriented business.
Further, this finding does not require a finding that creating a distinction between female and male topless dancing is the only means of achieving the compelling state interest.
The trial court itself made findings of facts and law that discussed ”[r]egulation of the location of sexually oriented businesses featuring nude or partially nude male or female entertainers.” [Emphasis added.] Thus, even the trial court recognized the need to restrict sexually oriented businesses featuring both male and female "entertainers.”
. Williams, 782 S.W.2d at 297 n. 5.
. See Williams, 782 S.W.2d at 298; McLean, 725 S.W.2d at 698-99; see also Malay, 848 S.W.2d at 384 (facially discriminatory ordinance would violate TERA where no evidence that discriminatory definition of "nudity” was only means to protect City’s interest).
. See City Code, Ord. 3011 § 18A(G)(19)(c).