The “free the nipple” movement is one that a very diverse group of people can support. Some for the right reason. Some for their own reasons. For obvious reasons, you pigs. This is not, as some might surmise, about women whose deepest desire is to walk around without wearing a shirt (or blouse, for the purists out there).
Rather, it had historically been the crime of indecent exposure for women to publicly bare their nipples. Men could go shirtless all they wanted. Boys divided into skins and shirts for basketball teams in gym class. Women would get arrested. Equal protection, right?
But the argument for prudes was that women and men were different. Nobody gave a damn if a guy’s nipple was out there, while female breasts were objects of sexual desire, and so exposing them would inflame the hormonal masses. Or, at least, this was what prim and proper folks believed, and those pearl-clutchers had breasts of varying size of their own. While we may not be a society founded in religion (hi, Sharia folks), the Puritans had their influence on the law.
U.S. District Court Judge R. Brooke Jackson granted an injunction Wednesday halting a Fort Collins ordinance that prohibited women from showing their breasts in public, saying it discriminated against women and perpetuated stereotypes that sexualized female breasts.
“I find that the ordinance discriminates against women based on the generalized notion that, regardless of a woman’s intent, the exposure of her breasts in public (or even in her private home if viewable by the public) is necessarily a sexualized act,” Jackson wrote. “Thus, it perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.”
That the ordinance facially violated Equal Protection, in that it criminalized conduct by women that was totally lawful for men, is one thing. The rationale, however, wasn’t grounded in the usual Equal Protection Clause argument, but rather went below the surface into the justification for why such ordinances exist.
Judge Jackson’s ruling appears to go less toward a rote Equal Protection application, and more toward the underlying cause for such unequal laws to exist in the first place.
In his decision, Jackson ruled against the city’s claims that law maintained public order and protected children. He also ruled against their contention that the order did not discriminate because male and female breasts are different, therefore do not raise an equal protection issue.
The primary difference between male and female breasts is the ability to breastfeed. Beyond that, an expert testified in court that breasts are similarly situated. The court noted physical differences but said that was not enough to warrant different treatment from the government.
In fighting “Free The Nipple’s” suit, Fort Collins tried to paint its facial discrimination in the most soothing possible colors, but Judge Jackson wasn’t biting on the “do it for the children” gambit. Characterizing it as “maintaining order” doesn’t change the real motivations for the law: boobies are so, you know, sexual.
But at the same time, Judge Jackson’s application of scrutiny to the justification raises problems of its own.
Thus, it perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.
This is certainly true, but does a judge have the authority, the ability, to change a stereotype? If a guy sees a woman’s breasts, must he admonish himself not to be aroused to avoid violating Judge Jackson’s order?
The fact remains that arousal happens. It happens whether people want it to or not, and while we can debate until the cows come home whether it’s nature or nurture, what cannot be done is eliminate it by judicial fiat. No matter how strict an order, how clear a rationale, guys are going to be aroused by things that arouse them. Two things in particular in this case, if that’s your things.
But the inclusion of the word “stereotype” in his rationale raises a distinct issue. Does the male sexual interest in breasts arise because of an “engrained” stereotype? Is this sexual interest merely a “widely held but fixed and oversimplified image or idea”? Stereotypes may be gross generalizations, but they arise from experience and are generally well-founded. They may not be accurate in every instance, or in their entirety, but without stereotypes, we would be bumping into walls constantly. No one can intimately know every other person, and so we rely on generalizations of necessity.
But stereotypes refer to others. Whether women view breasts as objects of sexual desire doesn’t really matter to guys; guys will be aroused regardless. As the great philosopher, M.C. Hammer said, “can’t touch this.”
Ruling that the criminalization of the exposure of female breasts is unconstitutional under Equal Protection analysis is certainly the correct one. Under intermediate scrutiny, there is no justification for distinguishing the exposure of a male nip from a female. They’re just body parts, and the person on whom they exist isn’t responsible for how other people react to them.
Yet, to suggest, as Judge Jackson does, that he can order males not to be aroused by two things that arouse them goes a step too far, and isn’t necessary for the ruling in any event. If the prudes who want to criminalize exposure of female breasts can’t bear the idea of women on the skins team, then they don’t have to look.
Chances are that most women will choose not to strut about in the course of a normal day shirtless, because they are well aware of the fact that guys will notice and react in a way that will make them uncomfortable. That’s not a stereotypical problem. It’s just how it is. Nature doesn’t change to suit the demands of Equal Protection, and no judge can effectively order it to do so.
*When written, it was based on the Denver Post’s story of the decision. The actual opinion is now available here, courtesy of Jim Tyre.