Where can you legally go topless in America?

By Fusion Staff  |  July 11, 2016 | 6:00pm
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For the past few years a saucy debate has simmered: Are women’s breasts inherently sexual, or has our culture sexualized them? After all, what’s the difference between female nipples and male nipples, aside from the fact that the former helps to provide the very lifeblood of mankind?

Much of this debate has focused on a woman’s right to bare her breasts on social media—both Facebook and Instagram have become notorious for censoring images of women’s chests, sometimes even banning artwork depicting breasts or photos of breastfeeding, lest one feel scandalized by accidentally spotting a boob in the wild.

This prudishness has fueled an entire movement demanding nipple parity: The activist group Free the Nipple is dedicated to fighting for a woman’s right to bare her chest in the same way a man can bare his. Some activists even argue that banning women from being topless violates a woman’s constitutional right to freedom of expression.

But while activists’ outrage has largely concentrated on freeing the almighty nipple online, what’s the deal with baring your breasts IRL? Shouldn’t the same philosophy apply to breasts in public? Activists say yes, but the stakes of going topless in public are significantly higher.

For every lady who’s toyed with going bare this summer, I recently investigated where in the U.S. a woman can go topless in peace—and along the way, I discovered that our country’s toplessness laws are a goddamn mess. Most states, it turns out, don’t even have clear-cut rules spelling out whether it’s legal for a woman to reveal her chest. Instead, they prohibit exposure of such ambiguous features as “intimate parts” or “private parts,” leaving the meaning of these terms up to the discretion of individual officers.

Further complicating toplessness rules, many states note that law enforcement can arrest a woman for exposing her so-called “intimate parts” in a way that is “lewd” or “obscene” or with the intent to arouse. While a woman might argue that she’s ditched her top to get rid of tan lines—not turn on her neighbors—a cop could interpret the move differently.

Between toplessness laws’ subjective nature, law enforcement’s sketchy understanding of various technicalities—and in many places, discrepancies between city and state rules—freeing the nipple can be risky, wherever you live. Ultimately, however, after interviewing attorneys general, private lawyers, law enforcement, and law professors in all 50 states, we came up with the map below:

Who gets to decide what’s lewd?

This map raised an important question: Who gets to decide what parts of a woman’s body are indecent? The majority of lawmakers are still men—but is it fair that a bunch of dudes get to determine how women express themselves in public?

In 1964, speaking on the issue of obscenity, U.S. Supreme Court Justice Potter Stewart famously said: “I know it when I see it.” Unfortunately, many people in America still see female sexuality itself as obscene, which can affect how laws are interpreted.

In regions where the definition of “lewdness” is left up to the arresting officer and the judge presiding over the case, personal opinions can play an outsized role, explains Sami Azhari, a criminal defense attorney in Illinois. “One can argue that women going topless is not ‘lewd,’ since men are allowed to do it, but the State can argue social norms of acceptable behavior.”

This was the case for model Gabrielle Mirville, who was arrested in Atlanta in 2013 during a topless photo shoot. According to Georgia state law, it’s illegal to expose your sexual organs in a lewd manner or appear in a state of partial or complete nudity in public. Technically, Mirville was arrested due to violation of a city ordinance banning the same—but her day in court exposes the problematic nature of all subjective nudity laws.

According to Mirville, who was 24 at the time of the arrest, the female judge presiding over her case didn’t care that she was topless for an artistic photo shoot—instead, she allegedly told her, “Next time maybe you’ll learn to carry yourself like a lady.'”

The states that are friendly to toplessness

So where are you most likely to avoid a fate similar to Mirville? The 17 grey states on the map mark the regions where going topless has been deemed legal by several measures—including the way the law is written and court cases testing these laws.

In Ohio, for example, it’s against the law to expose one’s “private parts” in public—however, several court rulings have decided that “breasts” are not private parts. Not only that, the Supreme Court of Ohio has made it clear that just because society has historically sexualized breasts, women should not be limited by those judgements. In the 2007 case City of Bowling Green vs. Bourne, the state’s top court wrote:

The Court of Appeals merely noted that ‘The female breast has traditionally been viewed as an erogenous zone.’ Citing tradition is not good enough, particularly when used to perpetuate the social inferiority of women by removing their option to choose what any man is allowed to choose.

In California, too, the state’s indecent exposure law technically doesn’t prohibit exposing female breasts—something the California Court of Appeal made clear in 1966 when it wrote:

We are constrained to the view that the display of the bare female bosom, whether defined as ‘entertainment’ or not, does not violate state law, is not regulated … by the state, and does not constitute criminal sexual activity in the area definitively preempted by the state.

Despite this view, many cities in California have adopted local laws that make it illegal in their districts—I can’t go topless in my hometown of Venice, for example, thanks to an ongoing city versus state battle. Rhode Island, too, has many city bans. So while those two states are grey, check your local ordinances before tossing your bikini tops!

New York also has a court ruling that allows female “top equality,” and earlier this year, the state even reminded law enforcement not to arrest women for baring their breasts. It joins New Hampshire, Vermont, Maine, Oregon, and Hawaii, in which women can probably go topless without being cuffed.

The states that are wishy-washy on toplessness

Other states on the map should be grey, but are purple instead. These are states in which the laws technically allow toplessness—but lawyers say there’s a chance you’ll get arrested for freeing the nipple anyway, and maybe even fined or prosecuted.

For example, West Virginia prohibits exposing “sex organs,” but the term “sex organs” does not include breasts, says David Schles, a criminal attorney in the state. Schles explains that other parts of the criminal code list “sex organs” and “breasts” separately, thus by only prohibiting “sex organs,” the state is clearly not prohibiting breasts.

So going topless is technically legal, he says, but a woman might have to fight in court to prove it. “I would think that a woman who chooses to publicly expose her breasts in many public places in West Virginia today would be arrested. She might ultimately prevail in court, but it’s not entirely clear cut.”

In Missouri things are just as confusing, since the state’s sexual misconduct law only mentions “genitalia”—not breasts. “There is no state law in Missouri that makes it illegal for women to go topless in public,” says Gregory Watt, a defense attorney in the state. Since no case law expands the definition of genitalia to include female breasts, he explains, it’s technically legal. “Basically anywhere it is lawful for men to have their shirts off, women can legally do the same.’

Yet this hasn’t stopped the city of Springfield from banning breast nudity anyway. Now the American Civil Liberties Union, along with Free the Nipple, are suing the city on the grounds that it criminalizes freedom of expression.

Strip at your own risk

So is it safe to go topless anywhere in this country? Yes and no. The least amount of risk is in the grey states, while the most amount of risk is in the pink and red states. In order for the laws to change, they would have to be challenged in court.

Which is possible. Many lawyers I spoke with said state laws are so ambiguous when it comes to female breasts that one could argue they are “void for vagueness.” Basically: If a person can’t tell what’s legal, how are they supposed to follow the law? Other lawyers argued that women have a constitutional right to be topless no matter what, under the First Amendment. States like Oregon recognize this, allowing full nudity—if it’s for political protest.

But simply having the ability to challenge state laws doesn’t guarantee a positive outcome. In 2004, a woman in New Mexico challenged the City of Albuquerque’s anti-nipple law in court, citing the state’s Equal Rights Amendment and freedom of speech—and she lost.

It’s clear that women generally do have a right to be topless—it’s just a matter of making lawmakers, law enforcement, and society see it that way.

We might not be able to fix this mess overnight, but in the meantime, this summer heatwave might provide the perfect opportunity to find your nearest grey state, grab an easy-to-remove bikini top, and assert your right as an American to free the nip. But just remember, for the love of God and country, to always wear sunscreen.

Taryn Hillin is Fusion’s love and sex writer, with a large focus on the science of relationships. She also loves dogs, Bourbon barrel-aged beers and popcorn — not necessarily in that order.

 
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