I haven’t really taken note of nudity laws in the US until fairly recently, but I’ve gotten very interested specifically in nudity laws that pertain to women, or females, being topless in public. I’ve scoured thousands of code ordinances and the same language describing a nudity ban, whether partial or total, has inevitably come up: “Female breast below a point immediately above the top of the areola.”* Of course, there is no law banning the male counterpart besides the occasional wording of a man being in a “discernibly turgid state.” But why? Why is it that female topless is forbidden in some states while in some states its perfectly legal? Why do some states use gender specific pronouns as to discriminate half of the US’ population?
The main reason why states, cities, or counties (please refer to my Topless Laws explained article to understand the difference between these different laws) ban nudity in general is to protect the public sensibiliy (How you, the state, or I define it is only murky at best) and when these nudity laws were challenged to oppose the first amendment, the best answer is that it really depends on the circumstances (while I have a separate issue with nudity laws in general, I will only focus on gender specific nudity laws).
My current issue are laws that discriminate against women solely because they are female, and these laws include the topless provisions. I argue that these laws are in direct violation of the fourteenth amendment as it places an unnecessary burden on women solely because of the cultural attitude toward women’s breasts (which are not so prevalent in other countries as they are in the US). It violates the equal protection law which I have replicated here:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Every person must have equal protection under the law and these topless laws simply do not abide by the equal protection clause. There is however, one flaw with my argument. Because it is possible to somewhat “override” the first amendment in favor of protecting public moral (public sensibilities) and banning nudity, why then can we not override the equal protection clause in favor of protecting the public sensibility against female toplessness?
“Since the statute prohibits the public exposure of female — but not male – – breasts, it betrays an underlying legislative assumption that the sight of a female’s uncovered breast in a public place is offensive to the average person in a way that the sight of a male’s uncovered breast is not. It is this assumption that lies at the root of the statute’s constitutional problem” (PEOPLE RESPONDENT, v. RAMONA SANTORELLI, Titone J. Concurring).
In order for this gender discrimination to occur, there must be feasible evidence that the “classification based on gender be substantially related to the achievement of an important governmental objective” (Titone).
“The equal protection analysis that the majority has attempted to avoid is certainly not a complex or difficult one. When a statute explicitly establishes a classification based on gender, as Penal Law § 245.01 unquestionably does, the State has the burden of showing that the classification is substantially related to the achievement of an important governmental objective” (PEOPLE RESPONDENT, v. RAMONA SANTORELLI, Titone J. Concurring).
I argue that topless laws do not lead to a greater government objective, and while I acknowledge that there may be flaws to my argument as there will be flaws to the “banning topless females” argument, I will replicate explanations from the PEOPLE RESPONDENT, v. RAMONA SANTORELLI (you may find most of the judgement here: https://www.law.cornell.edu/nyctap/I92_0160.htm), which is the New York State Supreme court case that deemed that females may be topless wherever a male may.
As I have explained, the topless laws must have a greater governmental objective in mind. Banning nudity may have one, but being topless solely does not. The reason as to why being topless is against “public moral” in the first place is because of “cultural expectations”; there is really “no objective reason why the exposure of female breasts should be considered any more offensive than the exposure of the male counterparts” (Titone). Is protecting an archaic, cultural bias against women also upholding the public sensibilities stature that nudity bans on genitalia (contrary to popular belief, breasts are not sexual organs and are certainly not genitalia) hold?
“Although protecting public sensibilities is a generally legitimate goal for legislation (see, e.g., People v Hollman, supra), it is a tenuous basis for justifying a legislative classification that is based on gender, race or any other grouping that is associated with a history of social prejudice (see, Mississippi Univ. for Women v Hogan, 458 US 718, 725 [“[c]are must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions”])” (Titone). In addition, “the concept of ‘public sensibility’ itself, when used in these contexts, may be nothing more than a reflection of commonly-held preconceptions and biases. One of the most important purposes to be served by the equal protection clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government. Thus, where “public sensibilities” constitute the justification for a gender-based classification, the fundamental question is whether the particular “sensibility” to be protected is, in fact, a reflection of archaic prejudice or a manifestation of a legitimate government objective (cf., People v Whidden, 51 NY2d 457, 461)” (Titone).
The topless statures, I argue, entrench deep, cultural, unhealthy negativeness towards female breasts (“Interestingly, expert testimony at appellants’ trial suggested that the enforced concealment of women’s breasts reinforces cultural obsession with them, contributes toward unhealthy attitudes about breasts by both sexes and even discourages women from breastfeeding their children” (Titone)). Simply discriminating against women for being topless does nothing for the good of society, but actually further sexualizes women’s breasts and leads to an unhealthy attitude about female breasts.
In addition, “from an anatomical standpoint, the female breast is no more or less a sexual organ than is the male equivalent (see, e.g., J McCrary, Human Sexuality  141)… Many in our society may regard the uncovered female breast with a prurient interest that is not similarly aroused by the male equivalent (but see Kinsey, Sexual Behavior in the Human Female  586-587; Kinsey, Sexual Behavior in Human Male  575; Wildman, Note on Males’ and Females’ Preference for Opposite-Sex Body Parts, 38 Psychological Reports 485-486), that perception cannot serve as a justification for differential treatment because it is itself a suspect cultural artifact rooted in centuries of prejudice and bias toward women” (Titone).
It is not enough proof that banning female toplessness will protect public sensibilities simply because people may view them differently due to cultural norms that bias women. Simply put, we cannot include archaic and biased laws based solely on cultural biases towards women as they alienate half of the population: there should simply be no place for them. It is important, as Judge Titone has said, to closely examine these cultural biases and expel those that have no place in the common, modern law as these topless laws do. To end, I leave you with the final paragraph of the concurring opinion of the People vs. Sanotrelli case:
“In summary, the People have offered nothing to justify a law that discriminates against women by prohibiting them from removing their tops and exposing their bare chests in public as men are routinely permitted to do. The mere fact that the statute’s aim is the protection of “public sensibilities” is not sufficient to satisfy the state’s burden of showing an “exceedingly persuasive justification” for a classification that expressly discriminates on the basis of sex (see, Kirchberg v Feenstra, 450 US 455, 461).”
*I was also unfortunate enough to find this lengthy defintion from the North Miami Beach code on “public nudity”: “That portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola (the colored ring around the nipple). This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areola is not exposed.”