New Hampshire Law banning female breasts

Recently, New Hampshire lawmakers have decided to introduce a bill that would criminalize “purposely expos[ing] the areola or nipple of a woman’s breasts in a public place” (http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=365&type=4) The bill at least makes breastfeeding legal, but it still obviously enforces sexist norms and archaic stereotypes that should have no place in the law. The proposed law was introduced by a couple of Republicans in New Hampshire in response to the Go Topless campaign that advocates for the equal treatment under the law, which includes the right for females to go topless wherever males may.

(See the full article below using the link).

http://www.slate.com/blogs/the_slatest/2015/12/30/new_hampshire_topless_bill_amanda_bouldin_harassed_by_sexists.html

New Hampshire state Representative Amanda Bouldin criticized the law citing that the law was both sexist and directly contradictory to the Republican platform of limited government and freedom. Unfortunately, she received outrageous backlash from Republican Representatives which actually proves that those who introduced the law themselves either do not understand the law or deem a topless woman “lewd” and “indecent” which female breasts certainly are not. Below is a comment that Republican representative Josh Moore wrote to Rep. Bouldin for criticizing the sexist bill:

Screenshot 2016-01-19 at 6.02.39 PM

Apparently, this Representative does not have the self control that ordinary human beings usually have, and also has no knowledge of criminal laws such as Chapter 632-A of the New Hampshire Criminal Code, which defines Moore’s possible behavior as sexual assault (a misdemeanor) if he were to grope anyone’s breasts, regardless of their sex (but he apparently wants to make laws even though he has no knowledge of the basic laws of his state). Apparently, Moore also does not understand that physically touching another human being without their consent is a violation of the law and that you are not entitled to someone’s body parts because you simply see it: self-control is not that difficult. I suppose then using Moore’s logic, that if someone were to leave their car unlocked, then anyone could steal it? I also suppose that you could steal everything in someone’s house if they left the door unlocked? Moore obviously does not understand that no one is entitled to do anything that infringes upon another’s civil liberty and rights (let alone their own body), which is what his statement and the topless law attempt to do. In addition, another representative named Baldasaro also launched an attack on Rep. Bouldin:

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Why would the sight of the ordinary human female breast be considered a “pervert show”? Baldasaro says he believes in family values? If Baldasaro has one female in his family, that statement that a topless friendly beach is a “pervert show” just implies that he has no intention in providing the women in his family with a healthy perception of their bodies, not the sickening “family values” that female breasts are “lewd” and “disgusting.” If you want to teach them some family values, then try to teach yourself and your family to have a healthy perception on both their bodies and on others as well (which apparently Baldasaro’s family failed to do). Furthermore, if Baldasaro is insinuating that the beach will turn into a “pervert show,” I guess he does have some insight as to what perverts do besides think about another politician’s breasts by saying that their nipple would be the “last one I [Baldasaro] would want to see.”

Regardless, Representative Bouldin hopes to fight the proposed bill in the coming year because it is obviously sexists and as she puts is, “We shouldn’t be introducing new legislation that only applies to women…If we had any laws that started with the sentence ‘women should not,’ they should have been repealed by now.”

*If I have any readers from New Hampshire, please, please take the time to reach out to your representative voicing your opposition to this law: civil action is one of the many ways to elicit a response from your political leaders.

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The Transgender Population and Topless laws

I recently found thus really interesting article on how these Topless Laws influence the transgender population, or Transgender women specifically:

http://www.bustle.com/articles/61199-how-transgender-women-make-topless-laws-look-even-more-ridiculous-and-offensive-than-we-already-knew 

It is a really interesting read, but it also makes me think about some very serious questions: what would happen if someone still classified as male in the state were to get breast implants and walk around topless: would they be breaking the law if there were a ban on female toplessness (Technically not, because he is male, but he could be arrested for disorderly conduct)? What if they were transgender men and walked around topless but still have not undergone breast reduction yet: would they be breaking the law? What if, setting aside how this law just discriminates the transgender population as much as it does women, a male were to get breast augmentations for the heck of it and let his hair grow out: would he be prosecuted for damaging “public sensibility”?

These questions are just another layer as to why these laws that ban female breasts are so discriminatory not only against women, but the transgender population as well.

 

Why Female Topless laws are unconstitutional

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 [1973] 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 [1953] 586-587; Kinsey, Sexual Behavior in Human Male [1948] 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.”

Topless Laws Explained

So what exactly are topless laws? What are laws regarding general nudity, public indecent, or disorderly conduct? Are there differences in topless laws across state boundaries, city boundaries,  and even places within a city?

So laws that regulate nudity are complex at best. Because nudity is not regulated on the federal level; states, municipalities, and even cities may have primary jurisdiction on nudity. Even those local laws that define/persecute nudity  or partial nudity are murky at best. Allow me to explain with a hypothetical example.* Let us take for example wearing a red shirt (For the sake of this argument we will use wearing a red shirt, but you can replace it with eating ice cream, nudity, and other actions that may be regulated by the local government).

Let us now say that wearing a red shirt can be directly prohibited by state law (For example: “A person may not wear a red shirt in public” or something to that extant). In this case, it would not be legal to wear a red shirt in public if the state law directly prohibits it as it says in the example.

However, now lets say that there is no direct law that prohibits wearing a red shirt, but instead, there is a law that says if you wear a red shirt to instigate someone, you may be liable for criminal action, or if the red shirt could outrageously offend someone and completely degrade public moral, it may also be illegal to wear the shirt (How you define offending someone without physical harm being done and how damaging that action may be to “Public Moral” is a separate issue altogether, and is a key reason why many argue that being “nude” cannot constitute disorderly conduct). So now, there is a gray area here because if even one person is offended by this crime, you may be arrested.

Now let us approach municipality laws, which are basically laws tied to the county. Say there is a law that prohibits wearing a red shirt (assuming that there is no direct state law that prohibits it) in the municipality or county. Then it is illegal to wear a red shirt in that county; however, if there is no law that prohibits it, then we go onto the next level of authority: city laws (Quick note: if the area you live in is unincorporated, then the last layer of government that you need to pay attention to is the county).

So now say that in the city, wearing a red shirt is outlawed: then it would be illegal to wear a red shirt; however, say there is no law that explicitly prohibits wearing a red shirt (to even further complicate the matter, say that you can’t get a drink at a bar whilst wearing a red shirt, or be at an exhibition wearing a red shirt). Then now, presuming that there is no explicit law in the state level, municipality level, and the city level, then it may* be legal to walk around with a red shirt. But here is the problem: there may some laws (federal, county, or city laws) that prohibit wearing a red shirt if it outrages public moral (as mentioned before),\ commonly known as disorderly conduct. This means if one person can possibly be offended by your wearing a red shirt, than you are liable to be arrested for disorderly conduct. And I am not mentioning being on private property or even on state land, for which laws can radically differ.

So now, see how complicated it is to wear a red shirt (hypothetically)? One needs to go through 3 or more levels of government to check if it is (maybe) legal to walk around with a red shirt. Even if there are no explicit laws on any level, if one person is offended by your wearing a red shirt, it could be possible that you have completely “outraged public moral” just by simply wearing a red shirt.

Now replace wearing red shirt with being topless (for females of course- the government and people in general love to discriminate). There are so many gray areas to being topless that there is no tell-all know-all map for all of this. And this is also why the Go Topless map may not necessarily be accurate: every level of government controls laws on nudity. What I hope to achieve with this website is to explore female topless statures, so that people have a better understanding of these laws and can hopefully combat them with actions to abolish these laws in favor of gender equal laws.

 

*This is a disclaimer that is also relevant to nearly everything I write. I am NOT a lawyer, and even if I am a lawyer, I do not have complete knowledge on all nudity laws in general because there are so many of them and I also do not have formal training as a law interpreter. My blog’s purpose is to solely help the public understand nudity laws so they can hopefully change them.

About this website

This website is dedicated to discussing the legality of being topless in the US. While no lawyers were consulted in the making of this website, which means you should not take this advice as set in stone, most information has been taken straight from state/city/county ordinances to fully explain and help interpret where a female can or (unfortunately) cannot go topless.

While this website also discusses the legality of being topless, it also very strongly promotes the equality of both sexes, meaning the ability for females to go topless wherever males may also do so (Sex equality under the law is only fair). It also discusses, in the form of posts, other issues females may face under the law. The website also may discuss issues related to sexual orientation.

No lawyers were consulted in the making of these posts or blogs, so please consult with an actual attorney to fully interpret your city/county/state law.