LotW (vii) SFW IMHO (though probably NSFW)

Congratulations TERA [Topfree Equal Rights Association] for becoming this week’s LotW! View at your leisure, but if you’re unconvinced, read below:

My original post was convoluted, going through personal experiences, public events, huge cultural questions, and finally a rebuttal to the dispute of yesterday. Needless to say, I’ve chosen a different approach.

I had originally conceived topfreedom as a small issue that wouldn’t take too long to blog about. However, the questions brought forth by my peers has helped me understand not only the immensity of the issue, but the necessity of public discourse.

Of course there are two discussions going on here:
1. Question of Rights
2. Question of Wants

My position is obvious on both counts: I want equal rights, and I personally want to be outside with my top off. However, due to the nature of my arguments, it is imperative to first address each issue independently (although we will see later that they are linked).

Question of Rights

In this first section, I only want[ed] to discuss the legal implications and reasons surrounding topfreedom. That may make this seem a bit dry, but the next large post will include much more evidence that topfreedom benefits both individuals and society.

I encourage everyone to view the Citations page I have set up, providing much of the legal framework on which I base my opinions. I will continually update it with more information as it is added. By far the best citation I have listed is Reena N. Glazer’s “Women’s Body Image and the Law” - but that will come later. For now, let’s look at the inherent question of rights:

I. A Basic Understanding of Law

According to Joel Feinberg’s “The Moral Limits of the Criminal Law” there are two actions that may be found in legal turmoil (i.e. illegal): Harms, and Offenses.

Harms are “wrongful setback of interests”. Anything that impinges on our right to pursue our interests (e.g. murder, rape) is considered harmful, and therefore potential for legal repercussions (needless to say, there is a further need to distinguish between “wrongful” and “defensible”; for example, Self-Defense).

Offenses are “unwanted states”, subject to personal (and cultural) opinion, and may contain qualities of: disgust; revulsion; shock to moral, religious or patriotic sensibilities; shame; embarrassment; anxiety; annoyance; boredom; frustration; fear; resentment; humiliation; and anger (Feinberg, 10-13). They are temporary, and less intense, and often-times unintentional (i.e. the offense is not meant as a harm) - therefore, much less actionable by legislators. Serious Offenses, though, might fall under legal authority.

How is something seriously offensive? Feinberg has set up some guidelines to help us understand whether offensive actions fall under proper jurisprudence:
1. Intensity
2. Duration
3. Extent (In regards of number offended)
4. Standard of Reasonable Avoidability
5. The Volenti Maxim: “To one who has consented, no wrong is done.”
6. Discounting of Abnormal Sensibilities

Because we need to discuss not only restrictions, but rights as well, Feinberg draws up guidelines for issues of liberty:

1. Personal Importance
2. Social Value
3. Free Expression
4. Alternative Opportunities
5. Motivation (Feinberg says this is not a reason for restricting liberties, with the exception of vice and malice)
6. Nature of Locality

Where does topfreedom fall in all of this? Since offenses are extremely subjective, it is difficult to make a blanket statement in any direction; for example, one may argue that
the American mindset is strong enough to discount “Abnormal Sensibilities” - but one may also point out that many women that would go topfree are not acting out of vice or malice.

The first three reasons of offense may go together in this instance: Intensity, Duration, Extant. Intensity may not be as deeply rooted as one would think; for example, rate these three offenses: A smelly person walks past you, a topfree woman walks past you, or ... Duration will only last as long as you look; if it offends you, be proactive! While Extent may be a card I need to fold on, keep in mind there will be another post.

Some of these (obviously) go together, such as 4. Standard of Reasonable Avoidability vs. Alternative Opportunities. It should be noted that while the offended can look away, or walk down a different street, or find a different park, offenders would be out of options (provided the law doesn’t support it)

The next question is: who has consented? Well, as individuals, we haven’t been asked recently. We did set up our democratic institution to rule in favor of topfreedom back in 1992. Because democracy by nature must be participatory (as yet another check and balance), and the relative quietness on an issue 14 years resolved, I am safe to assume that New York is comfortable being topfree.

The liberties will be discussed in the next post, as they bear a greater weight in that realm.

II. Equal Rights

Topics of discussion:
1. Differences
2. For Whom is the law written?
2. Objectification?

1. Differences:

From People vs. Santorelli (Judge Patricia D. Marks ruling) -

[m]ale and female breasts are physiologically similar except for lactation capability. Therefore, it is apparent that the [New York] Law with the gender based classification does not serve the legitimate governmental interest better than would a gender neutral law.

In order for American government to defend gender-biased legislation, they have the burden of proving that “a substantial relationship between a statute ... and a legitimate government objective” (Glazer, 128) Sadly, in the Santorelli (Rochester) case, this issue wasn’t brought up; it has consistently been overlooked and disregarded (possibly because of the clear evidence it would show against such legislation)

2. For Whom is the law written?:

Here is some more murky water. Laws regarding offenses are generally written with in care of liberties of the offender (see I. again if you missed it); for example, smokers are banned from restaurants (New York), where the intensity of their action may be greater, but not from the general public domain, where offenses are much more light and brief. Much care is taken for the liberties of the smoker, the adult who buys porn, the KKK. However, decency laws are different: rights and liberties are completely sacrificed for the “safety” and “protection” of the offended. These laws aren’t written with women in mind; they’re written by people who only want to suppress and objectify women (see the next section).

Certainly our current culture has a hang-up about breasts; surely this must be taken into consideration! Past gender issues have indicated no: Glazer points out: “...in Palmore v. Sidoti, the US Supreme Court held on equal protection grounds that offense to public sensibilities and potential societal stigmatization were not sufficient to terminate a mother’s custody rights merely because she was romantically involved with a man of a different race.”

This presents the precarious issue of point-of-view. Past rulings have contributed to misogyny by placing the burden of responsibility on women. This may sound natural at first (they’re the ones offending, right?), but the logic contains subtle hints of the patriarchic system. Again, from Glazer:

...[The Supreme Court of Washington]’s focus was exclusively on the male point of view - the reaction of male observers to female breasts. The differentiation ... was not based on physiology but on external reactions. Indeed, the only substantial distinction the court found between male and female breasts was male sexual arousal at women’s breasts. ‘[T]he preservation of public decency and order’ is achieved by limiting women’s freedom because exposure by women presumably inspires uncontrollable urges in males. This framework of protecting women from men shifts the burden of responsibility from men to women; because women provoke uncontrollable urges in males, society excuses male behavior and blames the victim for whatever happens.” (Glazer, 135)

If I own a gun, and a person shoots me with it, then are they prosecutable for murder? Or are they victims of their own uncontrollable urges - and it wasn’t their gun!

3. Objectification:

One might assume topfree women are sex objects;

The largest issue for me is objectification: by refusing women the right to choose whether they appear without a shirt or not, we are removing a liberty they may enjoy. We (meaning mainly white, male legislators) decide when women may be undressed (showers, dirty magazines, topless bars) and when they must cover up (beaches, parks).Topfree legislation, then, actually helps remove women from being sex objects.

To quote Glazer’s “Women’s Body Image”:

Male power is perpetuated by regarding women as objects that men act on and react to rather than as actors themselves. When women are regarded as objects, a great deal of importance rests on their appearances because their entire worth is derived from the reaction they can induce from men. In order to maintain the patriarchal system, men must determine when and where this arousal is allowed to take place. In this way, the (heterosexual) male myth of a women’s breast has been codified into law. Because women are the sexual objects and property of men, it follows that what might arouse men can only be displayed when men want to be aroused. For example, the statute [NY Penal Law 245.01] contains an exemption for topless entertainment, for which the audience is overwhelmingly male. In adopting the statutory standard, no consideration was given to contexts in which women might enjoy going topless for their own reasons, regardless of any effect on male viewers. Nor was any consideration given to the fact that women might not be bothered by the sight of other women’s breasts. As this Note suggests, women have actually been harmed by their isolation from other women’s bodies and by their lack of autonomy with regard to their own bodies. (Glazer, 116-117)

As this shows, and as my next topfree blog will show, it is the refusal to allow women the choice to present their bodies in a healthy, non-sexual way that maintains their status as sex objects. Topfreedom is an issue of choice, and a method of removing male privilege.