united-states united-kingdom equal-protection sex-discrimination
Can women also go shirtless in public legally?
<p>Do women have the same rights as men to walk on the beach or sidewalk topless where men are also walking bare-chested without being discriminated against? If a woman is arrested or asked to leave by enforcement, but not the men, is that blatant sexual discrimination? Would that be a lawsuit that can be pursued?</p>

<p>Let us say this issue does go to the Supreme Court. Would women be allowed walk half naked, men to not be allowed to walk with their breasts out (yes some men do and lactate) and/or allow some public places made acceptable like half nude beaches or areas of town where men and women can enjoy the freedom to be shirtless together? How would this play out? </p>

<p>In April 2017, a US District court on Colorado ruled that a law prohibiting women from exposing their breasts in public was an unconstitutional discrimination against women. The law was ordinance 134 passed by Fort Collins, Colorado  in May 2016. The group opposing it was led by the activist organization "Free the Nipple." This ruling is not binding in other states, however. See <a href="https://www.snopes.com/fact-check/breasts-in-public/" rel="nofollow noreferrer">this <em>Snopes</em> report</a> for more details. The case is being appealed to the Tenth Circuit. </p>

<p>A similar ordinance has been taken to state court in New Hampshire on similar grounds as described in <a href="https://www.apnews.co/ad8e5bbaf332420dbe7dc92a3dab6b61" rel="nofollow noreferrer">this AP story</a> and <a href="https://www.usnews.com/news/us/articles/2018-01-13/women-taking-their-right-to-go-topless-to-states-high-court" rel="nofollow noreferrer">this US News story</a></p>

<p>A similar claim in Illinois in 2017 resulted in a law against 'public indecency" being upheld (in <em>Tagami v. City of Chicago</em>) at the Federal Appeals Court level, according to <a href="https://reason.com/blog/2017/11/15/protecting-public-from-female-breasts/print" rel="nofollow noreferrer">this <em>Reason</em> story</a> </p>

<p>A similar law in Ocean City, Maryland, was challenged in federal court in the summer oif 2018 according to <a href="https://www.delmarvanow.com/story/news/local/maryland/2018/01/17/ocean-city-topless-debate-heads-court/1041290001/" rel="nofollow noreferrer">this news story</a>.</p>

<p>in 1991 in <em>United States v. Biocic</em> the US Court of Appeals for the Fourth Circuit upheld a similar law against a similar challenge.</p>

<p><a href="http://www.munknee.com/going-topless-is-legal-in-these-u-s-states-canadian-provinces/" rel="nofollow noreferrer">This <em>Munknee</em> article</a> lists states where a woman going topless is legal and illegal. According to a <a href="http://time.com/3834365/map-topless-laws/" rel="nofollow noreferrer"><em>Time</em> Article</a> (which gives a similar list):</p>

<blockquote>
  <p>The vast majority of states actually have laws on the books making clear that women can’t be arrested under state law solely for being topless in settings where it’s OK for men. But many local ordinances ban the practice anyway.</p>
</blockquote>

<p>In short, it is not yet fully settled if there is a US constitutional right for a woman to go topless, and state and local laws vary widely. Local laws do not always conform to the laws of the state, but would probably require a court challenge to enforce the state law.</p>

<p>Laws in other countries will vary, but many places ban such exposure.</p>

<p>Relating to your UK tag.</p>

<p>Arrests for mere nudity in the UK tend to be under the Public Order Act 1986, which prohibits behaviour that is "threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress".</p>

<p>Don't ask me when full or partial nudity counts as "threatening, abusive or insulting", but apparently it can. If the act reaches the threshold of "indecent exposure" then you move over to the Sexual Offences Act 2003, but that relates to sexually-motivated exposure of the genitals, so irrelevant to toplessness.</p>

<p>As such, if men and women go walking together topless, or for that matter go on a nude cycle ride, and no trouble results, there will not <em>usually</em> be any arrests either of the men or the women (<a href="https://www.bbc.co.uk/news/uk-england-london-36508187" rel="noreferrer">https://www.bbc.co.uk/news/uk-england-london-36508187</a> maybe NSFW). But trouble might result, and it might be more likely to result when it's a woman than when it's a man.</p>

<p>The law concerns whether or not harassment, alarm or distress is likely to be caused, <em>not</em> whether the person likely to be alarmed or distressed only finds it alarming or distressing for reasons that discriminate on the grounds of sex. Thus, in law there may be situations in which a man would be alarming where a woman would not, or where a woman would be alarming and a man would not. I don't have any idea how the UK Supreme Court would assess this kind of thing. But since the law they'd be looking at doesn't even mention men and women separately, it wouldn't be the same kind of consideration as David Siegel describes in the US. Rather, it would be whether sex in general (or the differences between men's and women's top halves in particular) can be taken into account when determining in law whether something is distressing or not.</p>

<p>What with Gender Recognition Certificates being a thing in law, (and even before that, occasional statistical outliers and the effects of hormones and whatnot), I suppose one cannot actually make the argument any more that there is a necessary physical difference between the <em>actual</em> top halves of men and women. There probably is between the <em>anticipated</em> top halves, expected by this hypothetical alarmed person, and there is a physical difference, that the court may or may not consider significant, between having breasts and not having breasts. So I think in the UK it doesn't matter whether a law banning women from being topless would be legal or not, because (a) there isn't one as such; (b) to the extent that there's a difference of effect of the actual law, it's mainly about breasts. So the question would be to what extent that could (or couldn't) justify indirect discrimination against women, who possess the vast majority of breasts in the country. Clearly under the Equality Act 2010 you can't have an employer just say "I'm not hiring anyone with breasts", for a job to which breasts are not relevant, and expect to get away with it. Equally clearly, the NHS can offer routine mammograms to women and not to men, and this doesn't constitute unlawful discrimination. So, we're somewhere in between, and the court would have to decide where.</p>

<p>For a law actually to be rejected by the court, as opposed to them ruling on some case where the law has been misapplied or enforced in a discriminatory way, I believe it would have to be on the basis of the Human Rights Act 1998. Never mind Europe, this is Westminster primary legislation. Article 14 says, "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex...". Obviously that's not quite the same as saying, "if something's legal for a man then it must also be legal for a woman", but absent a particular reason for a difference it's going to be interpreted that way. UK courts are not super-literalist about this kind of thing, so they won't rule that discriminatory laws are absolutely fine provided they don't relate to rights explicitly enumerated in HRA. But that's not to say they wouldn't necessarily authorise a public expectation that it's unremarkable for a man to walk around topless but alarming for a woman to do so. </p>

<p>As a practical matter of British culture, if a man walks topless down the High Street there will be no public hue and cry, but if a woman does the same then that almost certainly will attract a lot of attention, and the police would get involved if they think it's some kind of public disturbance. It doesn't follow from that, that the woman will be able to take her case all the way to the Supreme Court for the issue to be decided there. It's not the law or the police that made the disturbance, it's the general public's reaction, and the law doesn't actually say that the general public's reaction to something has to be ignored just because it discriminates. The shoppers telling her to put a top on, though, are also taking the risk of being charged with a public order offence or even assault if they overstep.</p>

<p>In case it's of interest breast-feeding, as opposed to walking around topless, does have explicit legal protection in the Equality Act 2010 and also the Breastfeeding (Scotland) Act 2005.</p>

<blockquote>
  <p>If a women is arrested or asked to leave by enforcement or touched sexually but not the men is that blatant sexual discrimination?</p>
</blockquote>

<p>If a woman is touched sexually against her will, by law enforcement or anyone else, then that's a potential offence regardless of whether or not she happens to be guilty herself of a public order offence. That said, we all know that sex offences against adult women are not prosecuted as successfully as <em>anyone</em> sensible would really like. I'm not just saying this to disparage anti-PC types: even most of them are not happy with the conviction rate. The Equality Act 2010 might have something to say about it if police are systematically assaulting women, quite aside from each individual assault being an offence.</p>

<p>Specifically regarding the question "let's say this goes to the Supreme Court".</p>

<p>In Minor v. Happersett, which admittedly was back in 1875, the Supreme Court ruled that 14th Amendment "Equal protection" clause did not entitle women to <em>vote</em>. The question of whether it entitled them to go topless wasn't under consideration, but I think we can safely suppose they'd take a dim view.</p>

<p>The opinion of the court included:</p>

<blockquote>
  <p>Neither the Constitution nor the Fourteenth Amendment made all citizens voters. A provision in a state constitution which confines the right of voting to 'male citizens of the United States' is no violation of the federal Constitution.</p>
  
  <p>...
  the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the states at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected.</p>
  
  <p>...
  But if it was not, the contrary may with propriety be assumed</p>
</blockquote>

<p>Fairly obviously, it was not. The case wouldn't have needed to be brought if it was, so one might conclude that the court ruled "sex discrimination is OK in law because sex discrimination already exists in law".</p>

<p>They also observed that the 15th Amendment is redundant if voting is a "privilege or immunity" already covered by the 14th. So, back then voting was not an inherent right of citizenship (later supreme courts apparently have backed off from this position). One can plausibly imagine a court ruling that walking around topless isn't either.</p>

<p>They also explicitly said that they took the 14th Amendment as intended only to concern the rights of former slaves, not to change any other unequal rights that might already exist (I don't know exactly what the status is here. Numerous cases have applied the 14th Amendment to various forms of discrimination other than against ex-slaves. Certainly it has been politically argued that a fresh Amendment stipulating equal rights for women would be redundant, but I don't know the positions of the current Justices on that).</p>

<p>The 19th Amendment (1920) gave women equal rights <em>to the vote</em>, but did not restrict any other privileges and immunities from being abridged on the basis of sex. So it overrides the outcome of Minor v. Happersett, but not their view of the 14th Amendment.</p>

<p>Move on. A more recent court (under Brennan, in the 1970s) further developed the idea for different standards applying to different kinds of discrimination:</p>

<blockquote>
  <p>laws that discriminate on account of 
  race, national origin, and alienage 
  are 
  subject to strict scrutiny,
  laws that discriminate on account of 
  gender and 
  “
  illegitimacy
  ”
  are 
  subject to intermediate scrutiny,
  and 
  the vast bulk of 
  social and 
  economic legislation, as well as 
  laws that discriminate 
  on account of 
  age and disability,
  are 
  subject to 
  rational basis review</p>
</blockquote>

<p><a href="https://www.theusconstitution.org/wp-content/uploads/2012/06/Crossroads-Chapter-8.pdf" rel="nofollow noreferrer">https://www.theusconstitution.org/wp-content/uploads/2012/06/Crossroads-Chapter-8.pdf</a></p>

<p>"Rational basis review" means that the law can discriminate as long as it finds some arguable public benefit from doing so. As usual this means an argument and a benefit that a court accepts, not an argument that you or I accept. In particular, the court doesn't necessarily have to agree about the details of the supposed benefit, they merely have to agree that the legislature has standing to decide that it's a benefit.</p>

<p>Of course this is all ancient history, and the current court would take into account current attitudes and common practice, as well as the fact that these days people in general and Supreme Court Justices in particular have different ideas about the nature of inherent differences between men and women, as well as perhaps different ideas about whether existing laws are so important as the definitive source of "rights" on a given subject. So for example Obergefell v. Hodges prevented the prohibition of gay marriage on grounds of equal protection, which I think we can safely conclude that no Supreme Court other than the very recent would have done. The opinion laid out further significant development in the court's understanding of equal rights.</p>

<p>Scalia is history too, but recent history, and he wrote:</p>

<blockquote>
  <p>Certainly the Constitution does not require discrimination on the basis of sex. The only 
  issue is whether 
  it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If 
  the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and 
  they enact things called laws</p>
</blockquote>

<p>The Originalist, California Lawyer (January 2011)</p>

<p>Unsurprisingly, he also dissented from Obergefell v. Hodges. Scalia's originalist position essentially was that if the Congress that passed the 14th Amendment was sexist (or homophobic, or whatever), then the constitition is sexist (or homophobic, or whatever). End of. If you don't like it, pass a law to change it.</p>

<p>In contrast to all this, Bader Ginsburg has taken a different view of the 14th:</p>

<blockquote>
  <p>What 
  [the framers of the 14th Amendment]
  were getting at, basically, and you will find this popping up 
  again and again in the legislative record, they were against caste. They did not want the United States to 
  have any classes 
  or castes that would identify people by their birth status</p>
</blockquote>

<p>Nicole Flatow, 
Justice Ginsburg’s Take on Originalism
(Nov. 22, 2011)</p>

<p>She, in common with other liberal Justices, thinks that an "exceedingly persuasive justification" is needed for laws discriminating on the basis of sex, but note that doesn't mean even she categorically rules out that such a justification might be made in some cases.</p>

<p>IIRC there are stacks of 5-4 and 6-3 decisions that Bader Ginsburg joined and Scalia dissented from, where the majority of the court more-or-less believes that changes in public opinion what constitutes "equal" or "reasonable" on a subject <em>can</em> change the effect of the constitution. So, for cases like yours, they might think it doesn't matter whether the framers of the 14th were sexist; what's relevant is whether the current court is sexist. Opponents of those rulings call this "legislating from the bench".</p>

<p>So you cannot have absolute confidence that the court will rule that in every situation it is unconstitutional for the law to treat men and women differently. We can hope they will, and offer arguments why they should, but the institution's past record doesn't justify assuming they necessarily will. A lot depends on Kavanaugh, who replaces Kennedy. Obergefell v. Hodges was 5-4: Kennedy voted for it; Kavanaugh is expected to be considerably more conservative but that doesn't necessarly mean he's as originalist as Scalia was.</p>
