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Breasts
Now that I have your attention, I wish to direct it to a split decision handed down today by the 10th Circuit. On equal-protection grounds, the court struck down an ordinance in place in Fort Collins, CO forbidding women from baring their breasts in public except for the purpose of breastfeeding. Ed Whelan at National Review is on the case, and he reports the following:
In his majority opinion (joined by Judge Mary Beck Briscoe), Judge Gregory A. Phillips cites with approval the district court’s objection that the ordinance “perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” In a classic false dichotomy, Phillips concludes that the city’s “professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.” Ditto for “notions of morality” that might underlie the law.
The minority opinion, which Whelan quotes at length, is, as he points out, quite sensible. The difference between the two opinions, I would add, comes down to the majority’s acceptance of this absurd dogma: there is no natural difference between women and men worth noticing. Nearly everything that we used to attribute to sexual difference is explicable in terms of gender — which, when the term is appropriated from grammar and applied to human beings (as it first was ca. 1960), means that it is arbitrary . . . a social construct . . . and nothing more. Therefore, the law cannot take cognizance of the differences between women and men.
What is missing from the majority’s opinion is a recognition that the artificial mores and manners that we construct with an eye to the sexual differences supplied by nature are constructed on the foundation of those natural differences. These mores and manners differ somewhat from one society to another, but there is no civilization that fails to articulate mores and manners of this sort, and that is telling. Moreover, the majority willfully ignores the fact that, within this astonishing diversity of mores and manners, there is considerable uniformity and that this uniformity is a product of rumination concerning the import of natural sexual differences on the part of a vast number of human beings who are on other matters at odds.
The sad truth is that the dogma that provided the foundation for the 10th circuit’s decision is shared by nearly everyone who teaches at the colleges and universities in this country and that the credentialed elite produced by these institutions is by and large on board with this nonsense. What makes it particularly astonishing is that this dogma has gradually become established in an era in which students of biology have gone the other direction — suggesting that nature, rather than nurture, is the primary influence on the way we customarily think and the way we live. On the one side, there is ideology. On the other, there is science. We as a country are choosing the former.
I have no doubt that the Supreme Court will overturn this decision, which is at odds with the positions taken by other circuits. But we should not kid ourselves about what lies ahead.
Published in Law
New York rescinded their gender-specific public nudity laws 20 years ago, allowing women to go topless without legal hassles.
Unfortunately, it’s rare that you’d want to look at the people taking advantage of that allowance in the law.
Spoiler Alert…. it looks like this:
This has been the law in Texas for quite some time. I don’t see women running around topless too much. Most just don’t want to do that.
Stop being a prude. Stop making a big deal out of nothing. Go worry about important things.
I’m not terribly concerned. But I’ll freely admit that I’m not cool anymore.
Wouldn’t you know, there’s a website devoted to the topic of topless laws.
In Texas, women can be topless as long as they aren’t doing so for “prurient” purposes.
When Islam really arrives like it has in Sweden and Germany, all these legally-protected exposures will be very well received by the new migrants.
Not quite.
From Kurt Weill’s 1943 musical, One Touch of Venus (Lyrics by Ogden Nash)
“I can’t believe
That love has lost its glamor
That passion is really passé
If gender is just a term in grammar
How can I ever find my way?
Since I’m a stranger here myself”
The song, I’m just a stranger here myself, is a lot of fun.
FTFY.
Really, do people not know this or…… what? Are they pretending? To prove the matter, all the attorney has to do is to introduce into evidence a woman whose breasts and nipples are being stimulated and note the effect. In the right circumstances such stimulation can lead to orgasm or close to it. Next, introduce into evidence a man whose chest and nipples are being stimulated and note how pretty much nothing happens. We’re more likely to see bloody and raw nipples than orgasm.
If you want to have a discussion about decency laws in and of themselves then we can do that. I’m ok with decency laws – at the local level. However, to use the pretense that breasts aren’t sexual and to therefore justify a discrimination challenge to such laws is ridiculous.
Sadly, the wymen most likely to exercise this new “right” are never the ones you want to see….
Do you think 42 comments compared to an average of what? 6, tells us more about the differences between female and male breast than some twit jurist in Ft Collins?
I agree. Those boobs on the bench probably ate at Hooters for lunch before they udderly blew it on their decision . . .
The problem is, the women who are willing to walk around topless in public are rarely the ones you want to see doing so.
True, but part of the evidence contradicting the judge’s opinion is that it will still draw the male eye. How long contact will be made and the intensity and direction of the reaction thereto will be variable. But it will be different (for most biological males) than a reaction to a shirtless male.
I’ll just throw this out there. Then try to picture a major corporation doing the same commercial with the sexes reversed.
Yeah, from a practical matter I doubt this cause too many problems, but the logic behind it, that there is no difference between men and women, is just crazy.
I think @vancerichards and @skyler highlight the real issue: What does it mean to give the two biologically different sexes “equal protection” under the law? The judge simply said “there is no difference, hence no differential treatment.” That is manifestly wrong, but “decency” laws can produce bad legal thinking. Do decency laws protect a potential victim from unwanted sexual advances, or the public from viewing un-consented to sexual content or conduct? If you are tempted to say both, keep in mind that the penalty for indecency falls on the potential victim. Thus, decency laws must be for protection of the public from viewing un-consented to sexual content or conduct. So the threshold question is does the prohibited activity have an element of sexual content or conduct? As the comments demonstrate, most people would say “Yes, the exposure of a woman’s breast is generally regarded as having sexual content for male viewers (and some female viewers). This is true even for (and possibly more so for some men) breastfeeding.” This is the key problem: using law to restrict individual behavior based on the perceptions of the group to be protected from their own perceptions. If lawful, this reasoning can be used to impose any number of restrictions — and sharia law does so. The judge’s reasoning is flawed, but not the outcome.
Re: comment# 46
This commercial reminds us that women are attracted to men with beautiful chests and shoulders while, at the same time, inadvertently reminding us that the men who have the kind of chests and shoulders that women consider beautiful are physically much more able to fend off unwanted sexual advances than most women with well shaped breasts are.
Sometimes laws are designed to protect individuals against the consequences of their own folly. As for protecting people from their own perceptions, you write as if those perceptions are subjective . . . which is the presumption held by those who wrote the majority opinion. What if they are natural and normal? For this is what they are. We wear clothes to protect ourselves and to protect others. The reasoning of the judges, which you think flawed, is the reasoning you have adopted.
So, according to the law, women’s breasts are no different from mens’? Touching women’s breasts is not, therefore, sexual assault. Good news for some, I suppose.
When did they say it’s not assault? Assault is unwanted contact of any kind. If the contact is made for prurient purposes, then it is sexual assault. And that has nothing to do with toplessness. Wearing makeup or miniskirts is just as likely to provoke an assault because neither has anything to do with the choice to assault someone.
First, it’s already legal in most places in the country and indeed the world. No matter what part of the world you’re in, you’re not likely to find topless women walking around. Women, by and large, don’t like to do that.
Second, if a woman is topless it’s still against the law to assault her.
Third, and this is directed to people who object to seeing nakedness: Control your own urges and your filthy mind. To be frank, I don’t need and nor do most men need to see a woman naked to have “impure” thoughts about her. It’s my responsibility as a social creature to keep that to myself. I guess Mr. Rahe thinks that since he can’t control himself that we should expect others to not control themselves either. And if you can control yourself, Mr. Rahe, then what’s the big deal if you happen to see a rare breast or two?
That quote from the majority opinion is a really dumb statement demonstrating a complete lack of familiarity with human and social history. As you say, female breasts and male breasts are different, so it is not illogical to treat them differently. The “stereotype” has existed in almost every major society that has contributed to modern society. Possibly therefore it’s “reality.”
You got many of them in Texas?
We have many of just about everything in Texas. This is Texas after all. But you’re not going to walk around down town Austin or Dallas or even Leander and see women’s breasts flopping around openly. Women are not that way. Now, if you attend a women’s march in Austin, you might see some, but you’ll wish you hadn’t. If you go to Devil’s Cove on Lake Travis you’ll see a few drunken boaters topless, but no one brings their children to such places. And no one cares one way or another. I put this in the category of living in a free country. It’s not hedonistic; it’s minding your own business.
“… that the artificial mores and manners that we construct with an eye to the sexual differences supplied by nature are constructed on the foundation of those natural differences.”
Yes, this is why marriage was a gendered institution. It’s not at all logical to think that gender is crucial to the issue of whether you must wear a shirt, or where you go to urinate, but it was immaterial to the meaning and purpose of marriage.
This is rearranging the deck chairs on the Titanic as it lies on the bottom of the ocean.
He didn’t say it was not assault. He’s saying that it isn’t sexual assault which is a whole other can of worms than simple assault. Because, currently, unwanted touching of a breast would be sexual assault simply because it was the breast, quite apart from prurience. If the breast weren’t sexual then no sexual assault.
If you try to steal a woman’s purse and in the act of grabbing it, touch her breast you are not guilty of sexual assault. If you are attempting to grab her breast for sexual puposes and miss and only grab her shoulder, you are guilty of sexual assault.
Free the TaTas!
Paul,
This has been brewing for a very long time but has now metastasized into a very dangerous condition. When in the late 1970s the American Psychiatric Association raised the white flag on gender nobody much noticed but I did. Neither Freud nor Jung would not have endorsed their new “whatever” position. Now the most trusted institutional secular protectors of the psyche couldn’t be trusted anymore. This is why I have coined the phrase Sexual Schizophrenia to describe so much of what the left is peddling. If you have ever read Freud or Jung, Sexual Schizophrenia exactly what they are both describing. I don’t like either man because they are both agnostics. However, their ideas on sex & gender are very rational and solidly worked out.
The lunatics are running the asylum.
Regards,
Jim