Free the Nipple

In Free the Nipple et al v. city of Fort Collins, Co. the U.S. District Judge in 2017 decided that the plaintiffs, a group of women who desired to be able to go topless as men did, asked for an injunction to stop the city from enforcing an ordinance that prohibited women from exposing their breasts in public other than for the purpose of breastfeeding. The women won.

Because women, absent the ERA, only get “intermediate scrutiny” of their constitutional violations, the government had to show that the reason they distinguished between males and females was “substantially related to an important governmental interest.”  Such reason cannot be based on alleged differences between the sexes when all it does is create and perpetuate the inferiority of women. “Indeed, as the Supreme Court has made “abundantly clear in past cases[,] . . . gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, See also Miss. Univ. for Women v. Hogan, 458 U.S. 718, 726 (1982) (explaining that “[t]he purpose” of intermediate scrutiny is to make sure that sex-based classifications are based on “reasoned analysis rather than . . . traditional, often inaccurate, assumptions about the proper roles of men and women.”).”

The city argued that the law was necessary to maintain public order and to protect children.  The public order argument was that men would gawk and present a safety hazard especially if driving. But as the judge pointed out, that is based on a belief that society considers female breasts primarily as objects of sexual desire whereas male breasts are not. Some people would disagree with that.

No argument was presented on how it would harm children especially since children routinely see breasts as one of their very first sights. If they are breast fed, they see breasts frequently and often for years.  No evidence exists to show harm. The “protection” the city claims is not from the breast, but as the judge says, “from the negative societal norms, expectations, and stereotypes associated with it.” That’s not the woman’s fault nor should she be forced to pay the price.

The city argued history. Lots of things that are historically true are contradictory to constitutional rights such as slavery, Indian removal, Jim Crow, prohibition of voting etc.   Fortunately, “In our system, however, the Constitution prevails over popular sentiment. See Lawrence v. Texas, 539 U.S. 558, 577 (2003). See also Craig v. Boren, 429 U.S. 190, 210 n.23 (1976) (disapproving of the holding in Goesaert v. Cleary, 335 U.S. 464(1948), in which the Supreme Court earlier upheld a Michigan law that barred women from bartending that was justified on the grounds that the sight of female bartenders caused “moral and social problems”).” But it did protect the higher paid bartender jobs for men.

Then the city argued that men and women are not similarly situated when it comes to breasts.  An expert testified that in fact women and men are similarly situated when it comes to breasts but for the fact that female breasts can nourish children and male breasts cannot. But that does not provide a basis to discriminate.

This judge called it as it is – that regardless of women’s intent or feeling or actions, exposure of her breasts is a sexualized act as perceived by men. Thus, it perpetuates a stereotype … “created through sexual objectification of women. Research, she tells us, [referring to the expert] shows that sexual objectification of women leads to negative cognitive, behavioral, and emotional outcomes for both women and men. She opined that sexual objectification of the female breast contributes to higher rates of sexual assault and violence, as it tends to make younger and younger females appropriate sexual targets. She was asked what societal purpose there was for viewing female breasts as sexual objects. Her response: ‘It serves the function of keeping women in their place.’”

The judge said, “At bottom this ordinance is based upon ipse dixit—the female breast is a sex object because we say so. That is, the naked female breast is seen as disorderly or dangerous because society, from Renaissance paintings to Victoria’s Secret commercials, has conflated female breasts with genitalia and stereotyped them as such. The irony is that by forcing women to cover up their bodies, society has made naked women’s breasts something to see.”  Because it has been “part of our culture” is not a reason to continue –  male juries were part of our culture, male estate administrators were part of our culture, male military cadets were part of our culture, male lawyers and doctors and engineers and presidents is part of our culture.  All but the last has been ruled unconstitutional.

A different ruling came from Maryland in Eline et al v. Town of Ocean City, MD in the U.S. district court, August 4, 2021.  Ocean City is a tourist town and they did not want topless sunbathing on the beaches. The “substantial government interest” being protected was “public sensibilities” and they claimed that met intermediate scrutiny. An expert testified that “public sensibilities” have changed quite a bit since 1930 when men wore full body suits and women wore dresses and even stockings to go to the beach. Today, Ocean City has two Hooters where nearly naked women pose with young boys and women wear thongs or g-string bikini bottoms and only “pasties” during a “Best Body” competition sponsored in the town. The ordinance focuses on anatomical differences but does not say what those are.

The real reason is exposed when the court claims that they are “protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones. These still include (whether justifiably or not in the eyes of all) the female, but not the male, breast. The court acknowledges that previous decisions made on the basis of “moral sensibilities” have been proven to be unconstitutional or even outright immoral, slavery comes to mind along with child marriage and forced sterilizations. Even so, they slog on.

A concurrence in the opinion makes it clear they know perfectly well what they are doing.  “A law discriminating this way would not be permissible on the grounds that it reflected the views of a particular community. See Lawrence v. Texas, 539 U.S. 558, 582 (2003) (O’Connor, J., concurring) (“Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.”).”  Lawrence v. Texas was related to gay men.  “Morals” are decided by the ruling group and often to the disadvantage of the ruled. Beating your wife was moral and in fact desirable and in some cases mandatory. Paying a prostituted woman for violent sex shows her immorality not your own. As the author points out, relying on such noxious stereotypes and claiming we do it to “protect” the targets is stepping into the swamp where many an argument has sunk.

His example was excellent – suppose nudity was defined as a woman’s ankle or wrist?  Would she have to cover that up?  Suppose it was defined as her hair, should she cover that too?  What if it was feet and toes were the fetish as it once was in China, would she be forbidden from wearing sandals?  What if it was her face – should she wear a veil or a shroud?  As Voltaire said, “Those who can make you believe absurdities can make you commit atrocities.”

“By treating women’s breasts (but not those of men) as forbidden in public sight, these laws may reduce women’s bodies to objects of public gaze, reproduce the Victorian-era belief that women should be seen but not heard, and reinforce stereotypes that sexually objectify women rather than treating them as people in their own right.”   Yet he concurs in the decision because of a precedent that perpetuates discrimination.

Arizona has the same problem in its statutes.  A.R.S. §31-3211(9) defines “Sexual contact” as any direct or indirect fondling or manipulating of any part of the genitals, anus or female breast, but not male. The law on “obscenity” defines “Sexual conduct” as acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks or, if such person is a female, breast. So it’s only obscene if it’s a woman. A.R.S. §3501 (7)

Likewise, it’s only commercial sexual exploitation if it’s a female breast: Using, employing, persuading, enticing, inducing or coercing a minor to expose the genitals or anus or the areola or nipple of the female breast for financial or commercial gain. A.R.S. §3552 (A)(2) 2.

A minor cannot be admitted into an establishment if it’s a female breast being bared, It is unlawful for an owner, operator or employee to admit a person under the age of eighteen into any business establishment where persons, in the course of their employment expose their genitals or anus or the areola or nipple of the female breast. A.R.S. §3558 A

I think we should cover them all. Most of the guys I see walking around without their shirts are fat, out of shape, with stomachs hanging over their waists and their drooping breasts flopping about.  This offends my “public sensibilities.” Let’s just say no one can show their breasts in public unless actually breast feeding which is a biological necessity to maintain the lives of children.

Still women are shamed for men’s behavior. In the 2021 budget bills, the state legislature jumped in the que of those prohibiting the teaching of so called “critical race theory.”   It wasn’t but they just continue to flaunt their ignorance.  A section of HB2906 says:  Training, orientation and therapy; blame and judgment; prohibition; political subdivisions; annual report; definition

1. THIS STATE, A STATE AGENCY OR A CITY, TOWN, COUNTY OR POLITICAL SUBDIVISION OF THIS STATE MAY NOT USE PUBLIC MONIES FOR TRAINING, ORIENTATION OR THERAPY THAT PRESENTS ANY FORM OF BLAME OR JUDGMENT ON THE BASIS OF RACE, ETHNICITY OR SEX. THIS SUBSECTION DOES NOT PRECLUDE ANY TRAINING ON SEXUAL HARASSMENT.
2. “BLAME OR JUDGMENT ON THE BASIS OF RACE, ETHNICITY OR SEX” MEANS THE FOLLOWING CONCEPTS:
3. ONE RACE, ETHNIC GROUP OR SEX IS INHERENTLY MORALLY OR INTELLECTUALLY SUPERIOR TO ANOTHER RACE, ETHNIC GROUP OR SEX.
4. AN INDIVIDUAL SHOULD BE INVIDIOUSLY DISCRIMINATED AGAINST OR RECEIVE ADVERSE TREATMENT SOLELY OR PARTLY BECAUSE OF THE INDIVIDUAL’S RACE, ETHNICITY OR SEX.
5. AN INDIVIDUAL’S MORAL CHARACTER IS DETERMINED BY THE INDIVIDUAL’S RACE, ETHNICITY OR SEX.
6. AN INDIVIDUAL, BY VIRTUE OF THE INDIVIDUAL’S RACE, ETHNICITY OR SEX, BEARS RESPONSIBILITY FOR ACTIONS COMMITTED BY OTHER MEMBERS OF THE SAME RACE, ETHNIC GROUP OR SEX.
7. AN INDIVIDUAL SHOULD FEEL DISCOMFORT, GUILT, ANGUISH OR ANY OTHER FORM OF PSYCHOLOGICAL DISTRESS BECAUSE OF THE INDIVIDUAL’S RACE, ETHNICITY OR SEX.

Continuing the criminal penalties for exposure of and to the female breast violates this law.  It suggests violation of (1) that women are immoral if they expose their breast but not when men do it.  It violates (3) because it authorizes criminal charges for exposing or seeing a female breast but not a male one.  It violates (4) by suggesting that a person’s moral sensibility is determined by their sex.  It violates (5) by suggesting that because one woman bears her breast for sexual purposes, they all do.  It violates (6) by suggesting that women should feel discomfort, guilt, anguish and all manner of psychological distress because of their sex if they intentionally or unintentionally or of necessity (breast feeding) expose a breast.

The bottom line here is clear.  The law has nothing to do with “public sensibilities” and everything to do with male control.  When men decide women should expose their breasts – Hooters, magazines, nude bars, Best Body contests – they can be exposed. When women decide they want to expose their bodies – they cannot. The issue is not about the exposure of breasts, it’s about who decides, who controls. In a patriarchy, we know who that is. “Public sensibilities” is the default to a male decision.  That is one problem with intermediate scrutiny of women’s constitutional rights and why we need the archivist to publish the now ratified Equal Rights Amendment.