Free the Nipple

New Hampshire court cites ‘nature’ in upholding convictions for topless activists

A topless activist walks through the rain following a 'Free the Nipple' demonstration in Hampton Beach, New Hampshire August 23, 2015. (REUTERS/Brian Snyder)

In a contentious split decision, the New Hampshire Supreme Court voted 3-2 on Friday to uphold the convictions of three women’s rights activists arrested for going topless. Ginger Pierro, 30, was arrested for doing topless yoga at a beach at Lake Winnipesaukee in Laconia on Memorial Day weekend in 2016. Three days later, Kia Sinclair, 27, and Heidi Lilley, 58, went to a beach topless only to be accosted by police just 20 minutes after they arrived.

Lilley and Sinclair, who in 2015 helped start the Free the Nipple movement in New Hampshire, said they deliberately allowed themselves to be arrested in order to challenge the state’s indecent exposure law. The law, they said, is used in discriminatory fashion to target topless women but not topless men.

“I had never thought about it until I was a breastfeeding mom,” said Sinclair. “How come men are just running around with their shirts off, mowing the lawn and going swimming, and I can’t do so when I’m feeding my baby?”

“It’s pathetic how highly sexualized a woman’s breast is,” added Lilley. “I thought that it was necessary that we make a change to that.”

But in a majority ruling, Associate Justice Anna Barbara Hantz Marconi upheld the women’s original convictions. Citing a 1975 case from California in which an appeals court judge wrote that “nature, not the legislative body,” made the distinction, Marconi ruled that the law was not discriminatory because social norms dictate that women’s breasts be treated as sexually provocative. Free the Nipple activists have long argued that men’s breasts were also considered sexual until male activists fought for the right to go topless. According to The Washington Post, it was illegal for men to be topless — even at the beach — in most American states and cities until the 1940s.

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Even after New York state lifted its male nipple ban in 1936, publicly shirtless men still risked arrest if they were perceived gay. In 1947, for instance, Harvey Milk was among a group of shirtless men arrested for indecent exposure in Central Park, yet the barechested married men in the park weren’t harassed. But on the whole, men’s shirtlessness was a freedom swiftly won, thanks in no small part to male law enforcement officials and judges who could personally emphasize with male body politics. Meanwhile, many male lawmakers continually deemed female nipples prurient outside of the home or strip club. In other words, the major takeaway from how men freed their nipples is that the issue isn’t about nipples at all, but about how flesh is rendered gendered and moralized accordingly. It's time women start doing the same. This is about having the choice. It's about #Equality

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In an interview on Saturday, the women’s lawyer, Dan Hynes, said that they were disappointed by the decision, but encouraged by how close the case came to reversing the law. In his dissenting opinion, Associate Justice James P. Bassett characterized the ordinance as discriminatory, noting that women were being prosecuted for “wearing the exact same clothing on the beach” as men.

Read the full story at The New York Times.

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