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.
New York, along with the majority of other states, has laws that hold what individuals from Go Topless call a gender-equal position on public nudity: While people may be cited for “public indecency” or “disorderly conduct”, it is not illegal for a woman to have an exposed chest anywhere a man would be allowed to do the same. New Jersey, where Feeley was most recently arrested, is one of about a dozen states with ambiguous laws on the matter. Only three states – Indiana, Utah, and Tennessee – continue to have a complete ban on exposed female chests at any time. Many cities, however, circumvent more liberal statewide laws with local ordinances that make the baring of female breasts in public punishable by fines or imprisonment. Fines are more common, as simply being topless is a misdemeanor offense in most locations. However, if the arresting officer decides the individual was deliberately “lewd or obscene”, if other people file complaints, or if there are minors around, the topless individual may face felony charges, and may even be registered as a sex offender.
Feeley’s 2005 arrest in New York City, although it made headlines for her successful lawsuit, was not an anomaly. Women are commonly arrested for toplessness in states whose laws allow female toplessness. Earlier this year, 34,000 NYPD officers were issued a reminder that they can’t arrest anyone, male or female, for simply being bare-chested, which has been legal there since the mid-90s.
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.”
In other words: the government “objective” wasn’t directly aimed at promoting a stereotype, though it did shape legislation catering to publicly held stereotypes.
This was a line of reasoning ultimately rejected by the Court of Appeals, which held that the state, whose law was being challenged, had failed to prove “that there is an important government interest at stake and that the gender classification is substantially related to that interest.” Vito J. Titone, writing a concurring opinion, went further, explicitly rejecting the idea that “public sensibility” could be invoked in defense of this sort of law. The “concept of ‘public sensibility’ itself, when used in these contexts,” he argued, “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.”