To hear some lawmakers tell it, the female breast exposed in public has the power to destroy the moral fabric of the nation. A woman going topless would subject children to pornography, they say. Families would no longer have the right to enjoy public parks and beaches, which would constitute a threat to the democratic way of life.
That’s a lot of destructive power for a body part.
“We have a responsibility to protect the rights of thousands of families who visit our beach and boardwalk each summer season,” Ocean City Mayor Rick Meehan said after that Maryland town recently made it a crime for women to bear their breasts in public.
But advocates for going topless have been winning, too. This year in Colorado, a federal judge rejected claims by city leaders in Fort Collins that the female breast was “a private part” and posed a threat to “public sensibility.” The local law criminalizing the exposed female breast was overturned — and so far, public sensibility appears to be unharmed.
Successful court challenges to these kinds of obscenity laws are being spearheaded by groups pushing for gender equity in a broader sense — equal pay for equal work and women being able to control their own bodies, including how they present themselves in public.
Some have argued that laws prohibiting the baring of breasts are symbolic of the inequity. Men have the freedom to expose their breasts on some jobs and during myriad leisure activities. Why should a woman’s breasts be regarded any differently, the advocates say.
Brenna Helppie-Schmieder, writing in a 2015 issue of the DePaul Journal of Women, Gender & the Law, argues that laws prohibiting the public display of the female breast (but not the male breast) are harmful, outdated and unconstitutional under the 14th Amendment’s Equal Protection Clause.
“Female breast censorship … perpetuates heterosexual male definitions of eroticism, contributing to the sexual and political subjugation of women,” Helppie-Schmieder writes. “It enforces dangerous body image issues [and] deprives women of the choice to be comfortable.”
Her case is buttressed by the work of legal scholar Luke Boso, who notes that “[s]ociety … has carved out an exception to the general nonacceptance of female breast exposure: exposure to entertain or sexually arouse males. Women are often free to expose their breasts at times and in places in which men desire it: at topless bars and clubs, in pornography, and in the bedroom.”
Moreover, local obscenity laws rarely include the whole breast. The definition amounts to legal nitpicking. But clear thinking on formulating breast censorship laws can be hard to find.
In upholding a breast-censorship statute in New York, a judge found justification in the Bible and quoted extensively from the Book of Genesis:
“So she took some of its fruit and ate it,” the judge read, citing the story of Adam and Eve, “and she also gave some to her husband, who was with her, and he ate it. Then the eyes of both of them were opened, and they realized that they were naked…”
The female breast, covered in fig leaves to conceal the immorality of the original sin.
Fortunately, the ruling was overturned.
While the government has an interest in protecting “public sensibilities,” Helppie-Schmieder writes, such sensibilities when applied to the female breast are “likely just a proxy for stereotypes.”
She adds, “even though some may find the female breast arouses the prurient interests, such a perspective is itself ‘a suspect cultural artifact rooted in centuries of prejudice and bias towards women.’”
It is true, she concedes, that some may be surprised by the sight of an exposed breast in public. However, “there is nothing illegal about being surprised.”
The ban in Ocean City was affirmed last week in an opinion by the state’s attorney general. But there was recognition that the law had not been written in stone.
Helppie-Schmieder noted that relatively few women are actively pushing to end breast censorship, but the vast majority of women are certainly not opposing it.
Most do not feel an exposed breast is a threat to Western civilization or that a child who sees a breast is, in effect, being exposed to pornography, she said.
Exposed women’s breasts are becoming ubiquitous — in the fashion industry with its sheer, see-through outfits and in movies and even television shows where it appears no love scene is complete without a flash of breasts.
Although supporting the Ocean City law, Maryland’s attorney general concluded that “the issue is not static.”
Times are changing.