The Social and Legal Arguments for Allowing Women to Go Topless in Public

The Atlantic reports:

In early August, 33-year-old Phoenix Feeley began a 16-day jail sentence in New Jersey for refusing to pay fines from 2008 when she was arrested for sunbathing topless at a Spring Lake beach. She spent nine days on a hunger strike before being released early from Monmouth County Jail on August 14. 

Feeley is part of Go Topless, an organization that advocates for women’s right to go topless on the basis of gender equality. The group says its objective is not to push for a world where everyone goes sans shirt, but rather to push back against what they see as an infringement of women’s constitutional right not to be discriminated against on the basis of gender. The question is: Why should women be barred from going topless where men are not? It’s a question that quickly takes its debaters from an analysis of legality to the subtleties of how men and women are treated by the law and society.

The incident in New Jersey wasn’t Feeley’s first legal squabble over the issue of public toplessness. In 2005, the activist successfully sued the NYPD after being arrested for walking shirtless down a New York City street, where it is officially legal for women to do so. She was awarded a settlement of $29,000, in addition to bringing attention to the often vague or inconsistently enforced toplessness laws in the US.

As I understand it, NZ laws are non-specific as to what has to be worn in public. We’ve had topless women in parades, and I think the naked jogger even escaped conviction.

The idea that female toplessness is somehow different from male toplessness is clearly deeply embedded in our collective social psyche.

This argument, in fact, came up in a landmark case in 1986, when nine women were arrested in Rochester, New York, for being topless in an isolated park, at a time when the state had a law forbidding female toplessness.

Judge Herman Walz, one of the first to hear the case, which took six years before being settled finally by the New York State Court of Appeals, wrote in his decision that “the statute’s objective is to protect the public from invasions of its sensibilities, and merely reflects current community standards as to what constitutes nudity. The objective itself is not based on stereotyped notions, therefore it is not illegitimate.” He also wrote that “community standards do not deem the exposure of males’ breasts offensive, therefore the state does not have an interest in preventing exposure of the males’ breasts.”

I don’t really consider any nudity offensive (except my own!) but fair to say you tend to be more surprised if a woman is topless than a guy.

One of the curiosities of the debate, then, is that both sides argue that they are combatting objectification. Those opposed to public female toplessness say it is the exposure of breasts that will sexualize the women baring them. The question, finally, has much to do with how you think laws should relate to society: Is it more advisable to use laws to protect women (and the public) in a society that already views their bodies as sexual? Or should laws challenge preconceptions and foster an evolution in the perception of female bodies? Given that in the US, there are over 200,000 occurrences of sexual assault annually, with 9 out of 10 victims being women, both sides understandably feel that the sexualization of the female body is a high-stakes issue.

Advocates like Phoenix Feeley and Go Topless, though, would argue in favor of the more progressive second approach: using law as a tool for change. Pro-topless equality supporters claim that if state and local governments facilitate the normalizing of female bodies, people will begin to see women less as sex objects for the taking, a mental shift which could feed a decline in, among other problems, assault. They claim they are pushing for equal laws in an effort not only to gain legal fairness, but to change the overall view of women in American society. Legal thought in the U.S. seems to be shifting, slowly, in their favor. Only time will tell whether their social predictions, too, will be borne out.

I really can’t see a change of social acceptability, regardless of the legal situation.

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