Female toplessness in the United States

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(Redirected from
Topfreedom in the United States
)

Topless woman at World Naked Bike Ride San Francisco
Female toplessness laws in the United States by state and territory

In the

topless
) in any context in which a man can expose his. Other successful cases have been on the basis of freedom of expression in protest, or simply that exposure of breasts is not indecent (or similar terminology).

Laws and ordinances barring female toplessness are being challenged in federal courts around the nation. Each lawsuit, if it prevails at the appellate level, will legalize topfreedom in the following

preliminary injunction in a federal lawsuit in the 10th Circuit (Colorado), was won at the appellate level. In September 2019, after spending over $300,000, Fort Collins decided to stop defending their ordinance and repeal it. That effectively gave females of all ages the right to go topless wherever males can in the jurisdiction of the 10th Circuit (Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma states as well as all counties and cities therein).[1]

Topless freedom by state

California

See also:
Social nudity in San Francisco
Go Topless Day protester in California, 2011

State law allows public nudity that is neither lewd nor offensive.[2]

San Francisco allows public female toplessness, although public nudity is banned as of February 2013.[2] Women cannot be topless in San Francisco parks without advance permission from the city.[3][4][5] A popular spot for female toplessness in San Francisco is Baker Beach, a nude beach located in the Presidio neighborhood.[6]

In Berkeley it is a misdemeanor or infraction for a woman to expose "any portion of the breast at or below the areola".[3][7]

Oakland's dress law says that women cannot wear "any type of clothing so that any portion of such part of the breast may be observed".[3]

San Jose bars anything "less than completely and opaquely covered" female breasts.[3]

In Los Angeles, UCSD graduate student Anni Ma,[8][9][10][11][12][13][14] a "Free the Nipple" protester, was arrested for indecent exposure at a Bernie Sanders rally on March 23, 2016, when she removed masking tape covering her nipples. She has filed a federal lawsuit against the Los Angeles Police Department. Her attorney claims she was never "nude" and that California's indecent exposure law applies only to genitals, not breasts. She is also suing for constitutional violations, gender discrimination and violations of federal civil rights laws.[15] She was topless at a Bernie Sanders campaign rally, Saturday, March 19, 2016, in Phoenix, and she was led to the back of the venue without incident.[16][17][18]

The Venice Beach neighborhood of Los Angeles, in 1974, was home to a naturist resort that scandalized the community, attracted cameras and spurred LA to ban nudity. Venice Neighborhood Council, in 2015, moved to make the area exempt from the city's ban on topless sunbathing.[19][20][21][22][23]

In La Jolla, a community of San Diego, female toplessness is allowed in a nude beach called Black's Beach.[24]

Colorado

On February 22, 2017, U.S. District Judge R. Brooke Jackson granted a

Free the Nipple – Fort Collins brought the case in May 2016. The judge wrote: 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.[25] As of September 2019, topfreedom is legal throughout the state due to a win in the 10th Circuit Court of Appeals.[1]

Denver and Boulder do not distinguish between male and female toplessness.[26][27]

Florida

A Florida statute about indecent exposure prohibits the vulgar or indecent exposure of sexual organs but does not specify if female breasts are included as sexual organs. The right to breastfeed in public is expressly protected,[28] and one Florida court inferred that this exception indicates that female breasts are sexual organs[29] and the Supreme Court of Florida held that a separate statute about disorderly conduct can be used to prosecute female toplessness.[30] Courts have rejected equal protection arguments.

The right of a woman to protest topless has been held to be a freedom of expression and not an equal protection issue.[

Miami Beach.[32][33]

Idaho

Nothing in Idaho state law prohibits female topfreedom. Specifically, the Idaho statute regarding indecent exposure, I.C. § 18–4116, prohibits only the exposure of "genitals." Breasts are not genitals, so the state statute does not criminalize topfreedom. Absent a local ordinace, then, female topfreedom is legal in Idaho.

Confusingly, the state statute expressly provides that breastfeeding and pumping do not constitute indecent exposure. While seemingly redundant, the reason is that law and biology do not agree on the term "genitals". While biologically breasts are not genitals, the traditional legal definition of genitals includes female breasts, hence the discrepancy.

Although state law does not prohibit women from being topfree, certain municipalities within the state do prohibit it. For example, chapter 6 of title 5 of the Boise City Code presently criminalizes exposure of the female nipple outside of the context of breastfeeding. Such exposure is a misdemeanor. Twin Falls and Moscow also criminalize female topfreedom. Many Idaho municipalities, however, do not prohibit female topfreedom in non-commercial contexts. For example, female topfreedom is legal in these locales: Garden City; Eagle; Meridian; Coeur d'Alene; McCall; Sun Valley; and Ketchum. According to news reports, several women went topfree, apparently without incident, at a Coeur d'Alene beach over the Memorial Day holiday in 2021.[34]

Illinois

Sonoko Tagami, a

United States Supreme Court.[38] On April 16, 2018, her petition was denied.[39]

Kansas

As of September 2019, topfreedom is legal throughout the state due to a win in the 10th Circuit Court of Appeals.[1] The City of Manhattan amended its city code to allow female toplessness.[40] But topless women can still run afoul of the state's lewd and lascivious behavior law.[41]

Maine

In 2010 women marched topless in Portland, Maine to protest against what they saw as a social double standard regarding male and female nudity, specifically the right to public toplessness. Police in Portland did not prevent the march, as nudity is illegal in Maine only if genitals are displayed.[42]

Maryland

On May 20, 2017, Captain Butch Arbin, head of the

Maryland Attorney General has not released an opinion about female public toplessness in response to a formal request last year by a female resident and a topfree advocate who uses the pseudonym "Chelsea Covington."[43]
In response, on June 10, 2017, the town held an emergency meeting and passed Emergency Ordinance 2017–10, which made it unlawful for all females of all ages to be bare-chested in public, for purposes other than breastfeeding, in the same locations where it is lawful for males to be bare-chested. Violations of the ordinance will result in a $1,000 fine.

On January 16, 2018, Chelsea C. Eline, and four other women filed a federal lawsuit against Ocean City seeking preliminary and permanent injunctive relief.[44][45] On December 20, 2018, U.S. District Judge James K. Bredar denied the preliminary injunction request. On April 7, 2020, Judge Bredar ruled on a

motion for summary judgment that the city's ban on female toplessness was constitutional, noting “[t]he Court finds that protecting the public sensibilities from the public display of areas of the body traditionally viewed as erogenous zones — including female, but not male, breasts — is an important government objective.” “Whether or not society should differentiate between male and female breasts is a separate inquiry from whether it is constitutional to do so” (emphasis in original).[46] Bredar said his decision is consistent with past rulings from the U.S. Court of Appeals for the 4th Circuit, which reviews appeals from Maryland. The Supreme Court, he noted, has also maintained that physical differences between men and women — as opposed to stereotypes about men and women — can provide a valid basis for laws that treat men and women differently. But Bredar also said “[t]his Court questions whether laws which distinguish between men and women based on ‘public sensibilities’ can survive indefinitely. Such amorphous concepts are vulnerable to prejudice and stereotypes grounded more in fear than in reality.”[47]

Massachusetts

In December 2007, 50 residents of Pittsfield, Massachusetts petitioned the City Council requesting a segregated beach for topless sunbathing by both men and women. The petition was rejected by the council, with the Mayor calling it "unacceptable and unnecessary". Proponents of topless sunbathing vowed to continue their fight.[48][49][50] In 2010, 200 residents of Pittsfield placed a question on the ballot asking whether State laws should be clarified to allow topless sunbathing equally for both men and women.[51] The proposal was defeated 2,934 to 6,855.[52] On May 3, 2022, the government of Nantucket decided to approve an amendment which allows the practice of female toplessness in all public and private beaches of the town (based on the principle of gender equality). The proposal was approved by Attorney General Maura Healey on December 6, 2022.

Michigan

In 2020, the city of East Lansing, Michigan amended its disorderly conduct laws to remove a clause specifically prohibiting women from exposing their breasts.[53]

Minnesota

It is legal for anyone in Minnesota to be topless. However, the law is ambiguous because lewd exposure is considered illegal.[54][55] On November 18, 2020, the Minneapolis Park and Recreation Board voted to allow anyone to go topless in the city's parks without being ticketed.[56]

Missouri

On October 26, 2015, the

ACLU of Missouri, on behalf of Jessica Lawson and Amber Hutchison representing "Free the Nipple—Springfield Residents Promoting Equality", filed suit against the City of Springfield over its anti-topless ordinance in the District Court for the Western District of Missouri of the United States Court of Appeals for the Eighth Circuit. On January 22, 2016, the court granted a preliminary injunction barring the enforcement of the ordinance.[57] On October 5, 2017, a federal judge upheld Springfield's ordinance that requires a woman, but not a man, to completely cover their areola with an opaque material.[58] On May 6, 2019, the Eighth Circuit court of appeals affirmed the district court's decision.[59]

Nebraska

The City of Lincoln has an ordinance prohibiting women from being topless.[60]

New Hampshire

In February 2016, a judge dismissed[61] a case against two female "Free the Nipple" activists, Heidi Lilley and Barbara MacKinnon, who were cited for being topless at Gilford beach.[61][62][63][64][65][66][67][68][69][70][71][72] Because the judge decided "the town lacked authority for a prosecution because there is no state law that prohibits the exposure of female breasts in public," and the town "lacked authority for a criminal prosecution that's neither prohibited by the criminal code nor by statute," a bill to ban women from exposing their nipples in public was introduced. The bill would make it a misdemeanor for women to show their breasts or nipples in public with "reckless disregard" for whether it would offend someone. The New Hampshire chapter of the ACLU opposed the bill.[73][74] On March 9, 2016, the proposed ban legislation was defeated.[75] On February 8, 2019, the New Hampshire supreme court, in a 3 to 2 decision, ruled that the city of Laconia's ordinance does not discriminate on the basis of gender or violate the women's right to free speech.[76] The women appealed to the U.S. Supreme Court,[77] but their appeal was denied.[78]

New Jersey

In 2008, Phoenix Feeley (aka Jill Coccaro) was charged with violating an ordinance prohibiting public nudity in

Higbee Beach in Cape May County, New Jersey without a shirt.[80]

In the five years since Phoenix Feeley was found guilty and fined, she appealed the case to the New Jersey state appellate court, who ruled against her. The

New Jersey Supreme Court refused to hear her appeal.[81] Legally representing herself, she then appealed to the United States Supreme Court, but it too refused to hear her appeal.[82]

Phoenix Feeley would not pay the $816 fine, telling Judge George Pappas, "I refuse to pay the fines for an act that is legal for a man, but not legal for a woman." The judge sentenced her to 16 days but she was released after only eight for good behavior. Ron Taft, a Manhattan attorney, offered to pay her fine but Feeley refused, desiring to make a point. She went on a hunger strike. The GoTopless group organized a protest outside the jail where Feeley was held,[81] but only two individuals attended. Taft commented, "The point is, there are guys with larger breasts than women, and sometimes they take their top off."[83][84]

New Mexico

As of September 2019, topfreedom is legal throughout the state due to a win in the 10th Circuit Court of Appeals.[1]

New York

A photo from the first meeting of the Outdoor Co-ed Topless Pulp Fiction Appreciation Society in 2011

In 1986, seven women who picnicked topless were charged in Rochester, New York with baring "that portion of the breast which is below the top of the areola".[85] That law had originally been enacted to discourage 'topless' waitresses. The women were initially convicted, but on appeal two of the women's charges were reversed by the New York State Court of Appeals in 1992 on equal protection grounds in Santorelli's case.[86][87][88][89]

Phoenix Feeley of New York City, was arrested in 2005 in New York City for walking along a street without wearing a shirt. She sued the city for violating a New York State Supreme Court ruling in Santorelli's case which had declared that women can go topless in public.[86] The city finally paid $29,000 to settle her lawsuit. The Outdoor Co-ed Topless Pulp Fiction Appreciation Society from 2011 to 2021 organized regular gatherings around New York City of women who read books in public while topless.[90] The objective of the group, besides enjoying the sun and book reading, was to create awareness that New York law allows toplessness in public and to change social attitudes to the exposure of breasts. Although participation was very small, there was no harassment of the participants either by the police or the public. The Topless New York series, created by an anonymous New York City photographer in 2007, is another effort to raise awareness of women's topless rights in New York State, and normalize the exercise of those rights, by publishing photographs of women topless in public all over New York City and other areas of New York State.[91]

Holly Van Voast, a Bronx photographer and performance artist, was detained, arrested or issued summonses 10 times during 2011 and 2012. Among other places, she went topless on the Staten Island Ferry,[92] at the Oyster Bar in Grand Central Terminal, in front of an elementary school, on a train, and outside a Hooters restaurant.[93] After her arrest in front of the Hooters, police officers took her to a hospital for a psychiatric evaluation. On October 11, 2011, she appeared in the Midtown Community Court and promptly removed her top, baring her breasts, in front of the judge.[92] All the charges were dismissed. Van Voast filed a federal lawsuit on May 15 against the city and the police department.[93]

In February 2013, the New York City Police Department issued a command to all its officers through their daily roll call. It reminded officers that they are not to cite or arrest a woman for public lewdness, indecent exposure or any other section of the

Penal Law for "simply exposing their breasts in public."[93]

Ohio

Ohio law forbids public exposure of "private parts". However, state courts have ruled that "breasts" are not private parts. The Supreme Court of Ohio in City of Bowling Green v. Bourne (2007) said: "The Court of Appeals merely noted that 'The female breast has traditionally been viewed as an erogenous zone.' Citing tradition is not good enough, particularly when used to perpetuate the social inferiority of women by removing their option to choose what any man is allowed to choose."[94]

Oklahoma

Despite the 10 Circuit's ruling that women must be treated equally to men, Oklahoma Attorney General Mike Hunter claims it does not automatically apply to his state. State Representative Jim Olsen said only after a case works its way up Oklahoma state courts and their state Supreme Court comes to the same conclusion will Oklahoma allow female toplessness.[95]

Oregon

A topfree woman at the 2008 Oregon Country Fair

Oregon's indecent exposure law criminalizes only nudity that is intended to sexually arouse the public. The cities of Portland, Eugene, Ashland and Happy Valley all have local ordinances against exposing genitalia, but not against exposing female breasts.[96][97]

Pennsylvania

Pennsylvania laws do not directly address the issue. Ambiguous laws have been used to prosecute female toplessness under open lewdness, indecent exposure, or disorderly conduct.[98]

Texas

In 1972, the Texas

Hippie Hollow.[100] In 2013, Lewisville's nudity laws were updated to indicate that food staff must wear "decent covering".[101]

Utah

As of September 2019, topfreedom is legal throughout the state due to a win in the 10th Circuit Court of Appeals.[1]

In 2020, a Utah woman was charged with lewdness when, inside her home, her stepchildren saw her topless.[102] At the extreme she could be punished by being forced to register in the sex offender registry.[103] Rather than go to trial and face a chance of having to register as a sex offender for 10 years, Mrs. Buchanan pled guilty to one charge of lewdness (being topless in the presence of another adult, to wit, her husband), which will be dropped if she does not commit any new crimes for a year.[104]

Washington

See also:
Social nudity in Seattle

The

public nudity by itself is not illegal (in a nonsexual context), but naturists (and topless women) can be charged with indecent exposure if they are accused of performing an act considered obscene in public while being nude (or topless) and they have the explicit intention to harm other people through this act.[105] Breastfeeding
is not considered an act of indecent exposure according to the laws.

The city of

Denny-Blaine Park).[107]

Wyoming

As of September 2019, female toplessness is legal throughout the state due to a win in the 10th Circuit Court of Appeals.[1]

Virginia

Though not legal precedent, Virginia is the only state to feature female toplessness on its flag and seal.

Political movements

See also: Free the nipple

Go Topless Day

Main article: Go Topless Day

Go Topless Day is an annual event held in the United States to support the right of women to go topless in public on gender-equality grounds.[108] In states where women have that right topfreedom laws are celebrated, and protests are held in states where topless women are prohibited.

Organizer

The annual event was started in 2007 by Go Topless, a

Raelian Movement, a UFO religion.[109][110][111] GoTopless has supported events and chapters in other countries.[112]

History

Go Topless Day was founded in response to the arrest of Phoenix Feeley (Jill Coccaro), a topless activist who was arrested for being topless in public in New York in 2005. The city of New York settled with Feeley for $29,000 because toplessness is legal there.[113]

Go Topless Day is scheduled for the Sunday nearest August 26,

brassieres or bikinis.[116][117]

Events

In 2008, the first Go Topless Day was organized.[116][111]

In 2009, National Go Topless Day was celebrated on August 23 in the United States.[118][119]

In 2011, Go Topless Day in the US was held on August 24. Protesters, both men and women, participated in rallies held in twelve U.S. states, including California,[120][121][122][123][124] New York and North Carolina. Women who participated in the celebration used either fake latex nipples or pasties to cover their nipples and avoid arrest due to laws in some states that prohibit women from showing their areola and nipples in public.[125] The protesters displayed signs that read "Men and women have nipples. Why should women hide theirs?" and "Equal topless rights for all or none".[126] Many men who joined the demonstration wore bras and bikinis to protest against the double standard where men are allowed to go bare chested, but women are prohibited to go topless in public.[126]

In 2011, Go Topless Day was celebrated for the first time in Canada.

Kew Beach on a pick-up truck sounding loudly the song "Revolution" by The Beatles.[109] According to Diane Brisbois, the spokesperson for Go Topless Canada, "This is not a beauty contest. It is about freedom. We have support; there are many men who come to our events too."[110]

In 1996, the Ontario Court of Appeal overturned the 1991 conviction of Gwen Jacob, saying "there was nothing degrading or dehumanizing" about baring her breasts in public. The decision established the right of women in Canada to go topless in public.[127]

In 2011, topless women congregated in Bryant Park in New York City on Go Topless Day,[128] while men mostly observed,[129] 30 cities held demonstrations in the US.[130]

In 2013, Go Topless Day in the US was held on August 25 and marked the 6th anniversary of the event. There were demonstrations in 40 cities. Men who support the group's mission were asked to cover their nipples with pasties or bras.[130]

As of 2020 there have been 13 Go Topless Days, with the event being held in the last week of August each year.[131][132]

See also

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