Define Female. Define Breast.

Ocean City, Maryland, April 2016. Maryland legal language is clear. Nothing defines the female breast differently than the male breast, but so far I have not received my normal assurances of legality from any Maryland police agency. Ocean City Police and Ocean City Beach Patrol officers did last year agree with me that the legal language does not forbid female bare-chestedness, but the police stopped short of giving me a written statement of agreement. I’m working on it. Nevertheless, I have spent many afternoons on Maryland beaches without negative interaction. This week for example I spent two quiet hours of a warm evening reading near the tideline.

Any earnest conversation of topfreedom and female bare-chestedness will eventually turn to how we define femaleness and femininity.  Women should be modest, so say some…and going bare-chested is not ladylike.  Immodesty is fundamentally, to some, a crime.

One of the more absurd aspects of laws criminalizing female bare-chestedness or nipple exposure is how they attempt to define gender and femininity generally and the breast or nipple specifically.

Delaware ran into this in 2010 when a group of transgender women went bare-chested on Rehoboth Beach, exposing their “enhanced” breasts, as law enforcement described them.  After some markedly uncomfortable time in the media spotlight, Delaware finally ruled that “female-looking breasts” could be exposed, but only by people with male genitalia.  People with female genitalia, even with “male-looking breasts” or in the case of mastectomy patients, no breasts at all, still cannot go bare-chested.

Seattle made an “exception” in 2012 to allow double mastectomy patients to use city pools without wearing tops.  Because presumably, according to this line of thinking, a double mastectomy, by removing breasts, removes femaleness?  Which creates, presumably, maleness?  Which then allows for that breast to be shown in public?  It’s a troubling viewpoint when you really sit with it.

In New Hampshire, during this winter’s trial which ruled in favor of female bare-chestedness and the reactionary and failed attempts by some state legislators’ to criminalize the female breast, this question of gender identification caused several conversations to stumble.  The prospect of asking police to first identify who was male and who was female (Cup check?  Gloved hand?  Strip search?) before deciding which particular breasts were legal or illegal caused more discomfort among lawmakers than the thought of just allowing everyone equal freedoms.

Discussions of age are also a source of legislative discomfort, that whole girl/woman conversation.  When someone argues that female breasts are inherently sexual, ask them at what age those breasts start being sexual?  Then sit back and watch them squirm.  14?  You find 14 year-old girls’ bodies sexual?  12?  8?  No one will want to admit to anything under 18 (because porn defines our sexual standards, right?)  But then ask them to simply allow all female breast exposure up to the age of 18 and they look like they are caught in headlights.  You can see them struggling with the fact that they do sexualize teen girls, and the thought of a 17 year-old girl bare-chested at the pool fries their brains.  Otherwise they wouldn’t be calling for the criminalization of the breast at all.

To people who point out the obvious, that monsters and predators exist, that we must protect girls from rape, you don’t stop the predator by limiting the freedoms of the perceived prey.  That creates a presumptive victimhood that preemptively forgives the predator some degree of his or her crime and gives any perceived potential victim a share of the responsibility for all future victimhood.

On to the shape and size of the breast.  Some women have small breasts, some have virtually no adipose breast tissue at all.  Some women have very large amounts of adipose tissue, as do some men.  So for women with no adipose tissue, what about their femaleness makes their breasts more offensive or sexual than their similarly shaped male counterparts?  What about maleness makes a large breast less offensive?  What if a small-breasted transgendered female presents as conventionally male in dress and appearance and goes bare-chested?  Would we even know?  I assure you we wouldn’t, because it happens, and we don’t.

And of course there is always the fun game of defining which parts of the female breast are illegal.  Nipples, areolas, the area “below” the nipple/areaola… get your rulers out everyone!  In New Hampshire, there was some discussion among lawmakers in committee about how they might craft language to allow “cleavage” but disallow “topless sunbathing.”  It proved futile.  Miley Cyrus often speaks on this paradox of allowing women to show the “jug” but not the “nipple.”

All of these questions, while funny on the surface, bely a serious issue.  How do we define female?  How do we define legal (proper) feminine behavior?  X and Y chromosomes can exist in multiple configurations in all genders.  Intersexed people are born with sexual characteristics of males and females.  Human beings exist on a spectrum of gender and behavior. Where do we draw the line?  

Why draw a line at all?

Why not just treat everyone equally?