A (Trans)Gender-Inclusive Equal Protection Analysis of Public Female Toplessness
18 Tul. J.L. & Sexuality 143 (2009)
20 Pages Posted: 13 Apr 2009 Last revised: 15 Apr 2015
Date Written: 2009
Federal, state, and municipal laws have long regulated, and often blanketly prohibited, the exposure of female breasts in public venues for a variety of purported reasons. Generally worded to prohibit the exhibition of the “female breast with less than a fully opaque covering or any portion thereof below the top of the nipple,” nudity-regulating laws lack a similar provision for male breasts, and, in fact, exclude the male torso from coverage entirely.
Pursuant to the Supreme Court’s sex-based discrimination jurisprudence, advocates for topfree equality have repeatedly challenged these laws in court, arguing that they violate U.S. and state constitutions’ equal protection provisions. To successfully defend a charge that legislation discriminates on the basis of sex, the burden is on the government to show that it has an important interest, and that the regulation in question substantially furthers that interest. In applying this equal protection analysis to female-only toplessness, courts have almost universally accepted the proposition that these laws serve the legitimate and important governmental interests of protecting public sensibilities, or in preventing undesirable secondary effects associated with nudity. Further, they have also accepted, with little to no real analysis, that the sex-based classification is substantially related to the government’s interests because “there can be no doubt” that female, and not male, breasts are erogenous zones associated with sexual arousal.
The concept of sex and what it means to be “female” is rarely questioned when society seeks to objectify and sexualize a part of a woman’s body, inhibiting her choice to go topless. But, for example, when traditional marriage as between a man and woman is perceived as threatened because of a transgendered or transsexual person’s desire to legalize the union with their partner, only then will society - and more specifically, the courts - deem it necessary to meticulously scrutinize what it means to be “male” or “female.” Accordingly, when determining the legal validity of a marriage between a post-operative transsexual and a “biological” male or female, almost every court has come to the same conclusion: “the common meaning of male and female, as those terms are used statutorily. . . refer to immutable traits determined at birth.”
The courts’ sex jurisprudence, thus, exists as follows: (1) sex is to be rigidly construed as a biological predetermination, and (2) “real differences” between males and females justify the prohibition of female toplessness to protect sensibilities and against harm to society. But dual application of theses premises leads to an absurd result: laws regulating female toplessness are inapplicable to post-operative male to female transsexuals (MTFs). A transsexual male who, through surgery and hormone treatment, has the outward physical appearance of a woman is free to expose her breasts just as a biological male.
This article addresses the novel issue of whether the courts’ jurisprudence concerning transgender marriage requires a second look at equal protection challenges to laws regulating female, but not male, toplessness.
Keywords: women's rights, law and sexuality, constitutional law, equal protection
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