Taboo Trades
Taboo Trades
Busted: Policing Women On Top with Courtney Cahill
My guest today is Courtney Cahill, a Chancellor's Professor of Law at UC Irvine School of Law. Professor Cahill is a scholar of constitutional law, anti-discrimination law, sex equality, and LGBTQ equality. Her work examines the role of disgust in lawmaking and the synergies between sex equality and LGBTQ equality. She joins us today to discuss her latest project, Busted: Policing Women on Top, forthcoming in 2026 from Oxford University Press.
Cahill attended Yale Law School after graduating from Princeton University with a Ph.D. in Comparative Literature. UVA Law 3Ls Anthony Freyre and Kimberly Garcia co-host today’s episode.
Further Reading:
Cahill Bio: https://www.law.uci.edu/faculty/full-time/cahill/
Sex Equality's Irreconcilable Differences, 132 Yale Law Journal (forthcoming)
Reproductive Exceptionalism in and Beyond Birthrights, 100 B.U. L. Rev. Online 152 (2020)
The New Maternity, 133 Harv. L. Rev. 2221 (2020)
After Sex, 97 Neb. L. Rev. 1 (2018)
Krawiec Bio: https://www.law.virginia.edu/faculty/profile/kdk4q/1181653
And I think that was really, really interesting because, you know, generally speaking, these so-called free the nipple movements, they have been composed, yes, of women, but white women, right? And so the racial dynamics here have to really be taken seriously as part of this larger conversation of like, who is our constituency, right? Are all women on board? No, not all women are on board. There are women whose concerns, right, might break down along other identity lines that the Free the Nipple movement writ large hasn't taken into account.
SPEAKER_03:Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick. My guest today is Courtney Cahill, a Chancellor's Professor of Law at UC Irvine School of Law. Professor Cahill is a scholar of constitutional law, anti-discrimination law, sex equality, and LGBTQ equality. Her work examines the role of disgust in lawmaking and the synergies between sex equality and LGBTQ equality. She joins us today to discuss her latest project, Busted! Policing Women on Top, forthcoming in 2026 from Oxford University Press. Cahill attended Yale Law School after graduating from Princeton University with a Ph.D. in comparative literature. guys. Thanks for joining me today. Thank you for having us. Yeah,
SPEAKER_01:I'm very excited to be here.
SPEAKER_03:First of all, why don't we just start by having you both introduce yourselves to our listeners. Kimberly, why don't we start with you?
SPEAKER_02:Yeah, of course. My name is Kimberly Garcia. I'm a 3L at the University of Virginia School of Law, and I'm from Fairfax, Virginia. Okay, and
SPEAKER_03:Anthony, introduce yourself as well.
SPEAKER_01:It's Anthony. I'm a 3L UVA law, and I'm from Miami, Florida.
SPEAKER_03:Both of you volunteered to be the co-host for this episode. Why don't you tell us what it was about this speaker or this topic or this reading that made you want to dive into this one a little more deeply and engage with it?
SPEAKER_02:Yeah, I guess I can start first. I first found this topic super interesting because As a female, I think it's an area that concerns me. And for many decades, this issue has been very controversial. I wanted to participate in this podcast because I wanted to learn more about the impact that toplessness has in current days and to learn more about the reasoning behind certain regulations. And what about you, Anthony?
SPEAKER_03:What motivated you?
SPEAKER_01:I think reading through the topics that we had available to us this semester, this one jumped out at me because it seemed like a very kind of obvious form of sex discrimination that I think goes largely unnoticed.
SPEAKER_03:Being significantly older than you guys, I remember some of the early cases that she discusses here. And I remember at the time thinking that That's so strange that they make this distinction. I mean, you know, society generally makes it, but odd that the law makes it in this way. And what is interesting to me is that so much has changed in the way that we think about bodily autonomy and sexuality and sex and gender identity. in that intervening time period. And yet this discussion seems totally stagnant. Like, I feel like I could, you know, take the discussion that Courtney has here and think about the way people discussed it back, say, in the 70s, and like, it wouldn't be that different. The next question I have for you is what you hope to learn from the discussion today. You guys have some questions. I know that your classmates have some questions for Courtney. Kimberly, what is it that you're hoping to get out of the discussion?
SPEAKER_02:Yeah, I'm interested in learning more about Courtney's thoughts about this topic, what motivated her to start the research, her thoughts about potential solutions, and some of the general concerns about toplessness spans for my classmates.
SPEAKER_03:What about you, Anthony?
SPEAKER_01:Yeah, for me, I think it's very interesting how, at least from reading Courtney's work so far, we certainly agree on kind of the end goal. But it's interesting how much we might... diverge in terms of how we get there. And so I think it'd be very fascinating to have that conversation with her and see if we can find more overlap in the means by which we kind of realize these changes.
SPEAKER_03:Kimberly, anything else from you that you're hoping to get out of today's discussion? I
SPEAKER_02:actually think that goes over most of my thoughts. Anthony, a little bit of what I was thinking as well. Yeah. Anything else
SPEAKER_03:from you, Anthony?
SPEAKER_01:Just generally excited to kind of bring this conversation back into the light. I hope that Courtney's book and her appearance in this podcast kind of reignites this conversation. Even if it's a small step, I think it's one that kind of has to be taken so that change could actually start.
SPEAKER_03:I'm assuming she has that same hope. So thanks, first of all, again, both of you for doing this. And let's join the others.
UNKNOWN:Thank you.
SPEAKER_03:Thanks for joining us, Courtney. We're so happy to have you with us today. So happy to be here. So I wanted to... get you first to just talk a little bit about the inspiration behind this project. It's called Busted, Policing Women on Top, forthcoming with Oxford University Press in 2026. We all had a great time discussing this paper. We have tons of questions for you. But before we do that, I just wanted to get you to talk a little bit about what motivated you, what your goals are here, that type of thing.
SPEAKER_04:Sure. Thank you for that question. So I've, you know, as a law scholar, I have long been interested in the relationship between law and the body, by which I mean the way in which the law relies on the body and on biology to justify discrimination and sometimes oppression across identity categories. So, for example, historically, Race is probably a very easy example of this to understand. We saw this historically with race, right? Where enslavement was justified as... An expression of real biological. I mean, it was justified in many ways. Right. But one of those ways was it was like this. This is a natural institution because black bodies and white bodies are just just completely different. Jim Crow was justified as a valid expression, a valid constitutional expression of natural instinct, of real biological differences between the sexes. Interracial marriage bans before Loving v. Virginia in 1960. were routinely upheld on the theory that people from so-called different races couldn't reproduce, and if they did reproduce, their children would be sterile, right? So this idea in the context of race, where the law is constantly relying on biology to justify racial discrimination and racial subordination, and white supremacy was very, very common. Now, we don't really have that in race anymore. That is could be the topic of a different podcast. There's still remnants of that. So what you will often hear in these cases, it's almost like this sort of lyrical refrain. Physical differences between the races are no longer a ground for differential treatment of people based on race, but Right. And there's many problems with that statement, one of which is, well, wait a minute, physical differences between the races remains very much a basis for race discrimination, race subordination today. So we're treating it as if it's in the past, but it's not, of course, in the past. Right. With sex, we really see it, and it's very transparent, and it's very on the surface, right? But what do we see? We see the law. By the law, I mean legislators. I mean courts. I mean law professors, legal institutions. Still very much on board with this idea that bodies and biology constitute valid bases for sex, right? And now, by extension, LGBTQ discrimination. So I wrote an article on this a few years ago called Sex Equality's Irreconcilable Differences on just this topic. And when I was writing this article, it was... I came across a whole line of cases on female topless prosecutions that I didn't even know exist. And it wasn't just one or two cases. I'm talking dozens and dozens of cases dealing with this question that is the subject of my book, which is how the law bends over backwards to justify criminal laws that are just kind of very obviously driven by sexism and misogyny. And yet the law somehow manages to rationalize them by obscuring the sexism behind real biological differences. So I was really blown away when I found this whole sort of body of law, right? Why? First, there are just dozens and dozens of them. Right. And I have been teaching constitutional law for several years now, and they're never taught. I've never seen them in the casebooks. Why is that? Why is the casebook ignoring this line of cases? Second, what got me interested in these particular cases, the female toplessness cases, was that they look exactly the same. So if you look at one of the first toplessness cases for women, there were several toplessness cases for men when male toplessness was banned in the 1930s. But females, women didn't start to challenge female topless bans really until the late 1960s, 1970s. And one of the first toplessness cases was in 1975 here in Los Angeles. It seems somewhat counterintuitive today in the women lost. And if I superimpose that 1975 case on top of a 2021 case that was decided a couple of years ago by the Fourth Circuit called E-Line, those cases literally look exactly the same. right? So that really struck me. We've seen so much movement. I mean, 1975 was the very, very early days of constitutional sex equality. Like, the court hadn't really grappled with all of these issues in 1975. The court didn't strike down a form of sex discrimination until 1971, right? All forms of sex discrimination for the 14th Amendment's first 100 years were validated as an expression of real biological differences between the sexes. That stopped in 1971. And then you have this 1975 toplessness case. So can we really expect it to be sophisticated? No. But what we've had since then in constitutional sex equality is an prominent evolution of this thing called the anti-stereotyping principle and anti-stereotyping jurisprudence, thanks in no small part to former Justice Gimp or the late Justice Justice Ginsburg. So you've had all this movement, and yet you look at these recent toplessness cases and you're like, wait a minute, was this written in 1960? They look exactly the same. There's been no evolution. So that really struck out at me.
SPEAKER_03:Before you joined us, I was having a short chat with Anthony and Kimberly, who I'm going to introduce you to in a minute. They're the co-hosts for today. And I was saying that, you know, being substantially older than they are, One thing that struck me is how the conversation has changed so little during my lifetime when everything else, the conversation around everything else has changed a lot. I mean, you're mostly talking about the legal development or lack thereof here. But to me, also, the social discussion really hasn't moved that much.
SPEAKER_04:The social discussion, social media, I don't think I get into it a lot in my life. chapter you saw, but the community standards for social media websites like Facebook and Instagram flatly prohibit women from posting their nipples. If you self-identify as female, you cannot post your nipple. If you self-identify as male, right, on a social website, you can. If you self-identify as female, you can post your nipple if it's a result of breastfeeding or if it's the result of a mastectomy or if it's the result of an injury you sustained in war or the result of famine, right? You cannot post the nipple for your own enjoyment. You cannot post a nipple just because you want to, right? It's So not only has there not been movement, but these very old standards are now being kind of reified in contemporary norms. Contemporary norms are just kind of reflecting these old standards without questioning them at all, right? And then just quickly, the two other things that struck me about these cases that I was like, oh, God, I really want to write about them is, one, the misogyny. I mean, the cases are awesome to read. I mean, they're so depressing. But they're just awesome. They're nuts. And the misogyny and sexism is so transparent. So a lot of times when we read sex discrimination decisions, there's at least an attempt to make it sound legal. Right. To make it sound as if the law is somehow above the social scene. Right. And it's but here it's like law is simply a reflection of these intuitive gut sensibility surrounding the issues. Right. There's no attempt to make it rational at all. So that really struck me. Like, what is it about this law? resists rational thinking, right? Perhaps I got interested in it now that I'm saying this because I am very interested in the incest taboo. So there's some similarities here, I think. And then the fourth reason why I got interested in these toplessness cases as the subject of this book is because I realized when reading them that the sort of top up, the top regulation and the reasons for the top regulation is Sounds strikingly like the reasons for bottom regulation. What do I mean by bottom regulation? I mean abortion regulation. I mean the regulation and surveillance of pregnant women. And I thought, wow, can we really be surprised, honestly, can we really be surprised at a decision like Dobbs when females can't even control their breasts, right? Can we really be surprised? about what Dobbs did when females' body parts are quite literally criminal, right? So if, you know, a lot of people have told me, and we can talk about this, I think it's an interesting question, isn't this trivial, right? There's so many bigger issues out there. Why are you focusing on this one? I literally had a book publisher tell me this. He wanted to take the book, I will not name, But he said, look, I just don't think, I think these are marginal. I think these are marginal. And I tried to make the case. I said, that's the very reason why you should be interested in them. They're marginal and still yet they provoke such an inflammatory response. I have a law on the body seminar right now. It's teaching to my students. And I said, just feast on this for a while. The Supreme Court decision that set the standard set the constitutional standard of scrutiny for sex discrimination, right? You would expect this to be a huge case, right? This is going to be a case whose facts really, really convince the court we need to take this case. This is the case where we're going to say heightened judicial scrutiny for sex discrimination. What was that case about? Non-intoxicating beer. Oklahoma has a law that says if you're male, you have to wait until you're 21 to buy non-intoxicating beer. But if you're female, you can be 18. OK, talk about trivial. Right. So, you know, the things that we we say are trivial and not worth constitutional law are very much, you know, a product of these preexisting biases.
SPEAKER_03:Thank you for that. That was super interesting. I am now going to turn this over to the co-host for today, Kimberly and Anthony, and they're basically going to run the show from here.
SPEAKER_02:Good morning, Courtney. So nice to meet you and thank you for joining us today. I'm so excited for all the questions and for co-hosting this episode along with Anthony.
SPEAKER_01:I also wanted to thank you on behalf of all of us for jumping on the podcast, answering our questions and sharing your insights on this very interesting issue. So in your paper, you mentioned a few countries with aspirational attitudes regarding female toplessness. But in some ultra-conservative countries such as Poland, which restricts LGBTQ equality, abortion access, and gender-affirming healthcare, female toplessness is permitted and even normalized in many settings. This seems to challenge the idea that toplessness bans are intrinsically linked to efforts to regulate women's bodies, as these other countries impose stricter controls on body autonomy and expression and yet still allow toplessness. Do you think these societies have successfully elevated female toplessness beyond moral scrutiny? Or was toplessness never tied to moral policing in those cultures in the same way it has been in the United States?
SPEAKER_04:So thank you for the question. Thank you for all of your questions. I really, they are going to make my book a better book. So you will all get a shout out. This question in particular made me go look at Poland, which full disclosure, I hadn't looked very closely at. But let me first, before getting to Poland, a few things here. Number one, I would say, I would be careful about saying that toplessness is normalized. Right. Even in Western countries where we might be accustomed to seeing women who are topless at the beach like France and Spain and Italy. Right. So like even in those countries, the line between legality and illegality might be you're on the sand. So it's legal. The minute you're off the sand, it's illegal. Right. So so much of this is carving up spaces of legitimacy and then illegitimacy. Does that make sense? So even if these these countries say, hey, look, you know, women can be topless at the beach. They're quite clear that they can't be topless in most other spaces. So I think that's important to kind of keep in mind. I think there's a kind of tendency, and I probably do it a little bit too much in my introduction to say, oh, look, look at how different these other countries are. There were some cases in France that I found, not legal cases, but situations where women were charged for being topless in the home because passersby could see them in their home. I looked, your question prompted me to look at toplessness rates to the extent that information is available in these, you know, what we might think to be more permissive Western countries. And it turns out that for younger women, toplessness has plummeted even in spaces where it is allowed, right? So I read one statistic on Europe or France where it said like in 1974, women, Like 70% of women went topless at the beach or at pools, whereas last year or two years ago, it was like 19%. So one wonders what's going on here, right? Are social norms in even traditionally, quote unquote, progressive countries changing? you know, with respect to toplessness in certain places, at least, are those norms changing? And I thought that would be kind of weird. I'm not sure that's the case. But so what it was, what these research have speculated is, it's social media. So women don't want to be topless even in spaces where they're otherwise allowed to be because they don't want somebody taking a picture of it, right? And they don't want it to end up in a deep fake porn video somewhere, like completely understandable. Now, as for Poland, when I... I looked at this case. There was a case in 2009 where these two women were prosecuted or charged with violating a law for being topless on a beach somewhere in Poland. And they challenged it at the lower court and lost. And then they appealed to an appeals court somewhere in Poland. And they won. But they won largely because the court said, look... They were topless on the beach, but they were kind of in private. So people didn't see them, right? There was no evidence in particular that families with children saw them. So given that the state couldn't show that third parties were harmed, we can't You know, we're not going to hold them liable under this criminal conviction. Now, a very similar thing happened recently here in the United States. In 2019, the 10th Circuit in a case called City of Fort Collins struck down Fort Collins' public nudity law. And it was the same thing. Women who wanted to be topless challenged it under the federal constitution on equality grounds, among other grounds. And one of their arguments was, this is a sex stereotype. Sex stereotypes are almost per se illegal under the Equal Protection Clause. It goes to the 10th Circuit. It agrees, but then it says, well... We think the women's cases are especially persuasive, especially convincing, because the state didn't offer any evidence that anyone was harmed by seeing it, right? And they say, they go on to say, look, there's no evidence that women now are going to parade around, and they use that term, parade around Fort Collins topless, right? So that case is interesting. That is the one federal case in like 50, 60 years that has struck down a female-only topless law. And it did it not necessarily because, you know, regulating female toplessness in and of itself was a bad thing, but rather because the state didn't have enough evidence that it would harm. So that to me reminds me of the Poland case, right? So it's hard for us to sort of extrapolate from that.
SPEAKER_01:Thank you so much for that answer. Two things jumped out at me there. Calling back to social media, I think that that's very true, the kind of privacy concerns with social media and how that could be exploited. I also wonder if kind of the, you know, obviously social media companies are overwhelmingly American. And I wonder if through their policies, they are proliferating kind of American moral standards on girls and women internationally, European women. girls and women who, like you said 50 years ago, may have had different attitudes about being topless on the beach than they do today. I wonder to what extent that might be because they've been conditioned and raised, in a very literal sense, policed by their own companies that they use to post content and express themselves, that they've been kind of conditioned to the moral standard where toplessness is taboo.
SPEAKER_04:That is fascinating. I just wrote it down. I... want to dig into that a little bit more? Really fascinating, right? Do the community standards that we're seeing on private companies, media websites, are they because of the globalization of the internet, right? Like it has no geographic boundaries. Are these like what I see as very puritanical moral standards that we have just inherited, right? you know, from 300 years ago in this country, are they then now sort of, you know, trickling over to other places where nudity, female nudity has traditionally been more accepted? I don't have an answer right away, but I'm going to look and thank you. It's fascinating. Yeah. And then your second question.
SPEAKER_01:Yep. And this will be my last one. Yeah. So do you have any concerns that kind of framing the issue of female toplessness around current kind of culture war flashpoints, such as abortion access, such as trans healthcare, might alienate a lot of potential supporters who otherwise might be kind of open to the idea. But because they have this like entrenched viewpoint on abortion or trans rights or just kind of broader culture war things, political kind of divisions, they might just automatically lump this new movement with those ideas and just say, no, not for me.
SPEAKER_04:Right, right, right. That's really interesting. In some ways, what I have noticed in my research, less with abortion, but definitely with the trans stuff, the opposite phenomenon of the one that you're describing. So, for example, in the bathroom and locker room trans cases, where the question of seeing someone's body, you know, is really... front and center before courts. Five years ago, the wave was in favor of trans rights in those spaces. And now there's been the just like stark reversal. But five years ago, what I noticed, well, you know, starting five years ago, what I noticed that courts were really sympathetic to these trans privacy claims, right? Like, No, my privacy is worth something too. My body doesn't threaten on a privacy, from a privacy level, other people in the bathroom because we're all covered, et cetera, et cetera. Courts would agree with those arguments. And sometimes they would cite to the female toplessness cases. And they would say, well, the female toplessness stuff, that's not going to happen. That's not going to happen if we allow trans bathroom access, right? So in this paradigm, it was the female toplessness stuff that was worse than the trans stuff. Does that make sense? And so even, you know, pro-trans courts were cabining what was going on in the trans space and saying, that's not going to carry over. to sex equality. We're not going to find ourselves allowing women to be topless in the public sphere if we allow trans people to use the bathroom of their choice. Does that make sense?
SPEAKER_01:It does. And so just to make sure I understand, you're saying that an underlying kind of concern with these culture war, trans kind of gender expression issues is the nudity component. Yes. Which is central, obviously, to female toplessness. Yes.
SPEAKER_04:It's almost like, so I've written a lot, you know, with disgust comes slippery slopes because disgust logic in the law always takes the form of a slippery slope, right? If we allow X, we're going to have to allow Y. Y is really disgusting, so we can't allow X because that's going to plunge us into Y. Well, in this scenario, you would think female toplessness is the thing at the top. Oh, well, we allow that, but we can't allow, you know, maybe we can get on board with that, but if we allow that, it's going to plunge us into all this other stuff, but actually it's reversed. Female toplessness is the thing that sits at the bottom of the slippery slope.
SPEAKER_01:Got it. Got it. Okay. Thank you so much for that. You're welcome. I'm going to turn it over to Kimberly and she's going to give her question.
SPEAKER_02:Great. Thank you, Paul. That was so interesting. The paper discusses the biology of breasts and their perception as distracting and sexualized, particularly at certain ages. Are most states like Florida enforcing laws based on a specific age for indecent exposure? Since girls develop at different rates, do courts provide leeway for situations involving preteens or is the law applied uniformly?
SPEAKER_04:Yes, that was an awesome question as well. So in my research, I haven't found any prosecutions of younger girls, right? So what these statutes are is these are actually definitions of nudity, right? So the law will say public nudity is a crime. Well, then what is public nudity? And they list, they say public nudity is the exposure of body parts, which ones, and then they just list them. And they list the female breast of anyone 10 or older. Does that make sense? So along with the list for male body parts, but the list for male body parts doesn't include the male chest, right? Just the female chest. But Two things here. One, where we see surveillance of women's chests or girls' chests is usually in schools, right? So there are lots of cases dealing with girls who come to schools without a bra and they have to put Band-Aids. You know, they get called to the principal's office and the principal says, look, what you're wearing is very distracting. I want you to put Band-Aids over your nipples. Right. Well, putting band-aids over your nipples, as one can imagine, it hurts. It's very painful and it's very humiliating. But what I would say is this, even if, as we know, I mean, you're all in law school, you know this, arguably criminal law is at least as coercive when it's not actually being enforced. Right. So the fact that you have laws on the books that say, a female of 10 years old is committing a crime by being topless, even if that's never enforced against her, it is being enforced on an informal level, right? This is sort of law's deeply coercive expressive effects, which we see all the time, right? So do I think that a county is going to actually prosecute a 10-year-old? No. I'm not even sure they could. I don't know how that works. Seems quite perverse. But so then that begs the question, why keep it there then? Why keep it there? Well, we want to send a signal. We want to send a signal that the female body tips over into illegality once somebody turns 10, right? That before you're 10, that body is legal. But after 10, now you're committing a crime. Awesome. Thank you so much.
SPEAKER_02:That is so interesting because I feel like it's more of like a message approach than more of like a discipline of putting prosecution for certain ages. I believe Liv has like a follow up question to my question. Sure.
SPEAKER_05:Hi, Courtney. Thanks so much again for joining us today. And thanks so much for all your thoughtful answers. It's been really great to hear from you so far. So kind of following up on Kimberly's question and even your answer specifically about policing the bodies of young girls, whether it's through an actual prosecution or sort of like a virtual prosecution. Toward the end of the piece, you mentioned school dress code specifically. And this is something that I find very relevant, as you mentioned, to the conversations about the regulation of the female body in Busted. One of the most common arguments I always hear Yeah, absolutely. near unanimity and rallying against toplessness, but I'd be really curious to hear any more insight you have on those gender differences and opinions on toplessness. Like with dress code, for example, I feel that having more support from women themselves in schools and administrative positions could allow for more reasonable regulations. Is there a similar pattern that you see more generally with respect to toplessness? And do you think that if there was more solidarity among women, regardless of background age, et cetera, and not just certain women that we might see a future with less or more healthy restrictions.
SPEAKER_04:Yeah, so good. So yeah, I have to say what you shared about shoulders, I was kind of like, oh wow, these students are so young and that's still going on? I have noticed that in a lot of the cases where women are being prosecuted, It's because another woman, usually another woman with kids... alerted the police. Now, that's not always the case because in a lot of these cases, or at least some of these cases, the case starts because women want a declaratory judgment that a topless law is unconstitutional because they want to be topless. So they haven't yet been topless in violating the law, but they don't want to violate the law. So they want a court to declare that it's sex discriminatory and therefore it can't stand. So then they can be topless in the meet. Does that make sense? So not all of these are actual topless prosecutions. But when they are topless prosecutions, I have noticed that's typically a mom, typically a woman, specifically a mom with kids who see it and who fear for the kids, fear that the kids have been affected by it and report it. Now, I don't know what we do with that. I really don't know what to do with that. I don't want to make, I certainly don't want to make I don't have a data set, right? And I can't make huge judgments based on that, but I just think it's worth kind of thinking about, right? Who's doing the complaining? Like, who is doing the complaining? Tilly Buchanan, right? The mother of the biological mother of the kids was the one who turned her into... law enforcement, right? So there, again, you have the same kind of thing going on. And we can talk about that. I know that Tilly B, one of you asked, and it's a great question, why lead with Tilly B Cannon? And I can explain that. But so that's one thing, right? That I do, I have noticed that women are on board with, you know, these criminal laws. A lot of women are on board. So yeah, so it's not, it's not as if, unanimity among women is something that I even think that we can hope to achieve. Do you know what I mean? I'm not sure you ever achieve, ever achieve, ever achieve unanimity anyway. I, I think, you know, you're more likely to get more women on board once it becomes normalized. And once something, you know, so it's like a chicken and the egg thing. I feel, I really truly think in this context, you have to get rid of the ban to make this stuff normalized. Like so long as you have these criminal laws, it's not going to be normalized. So it's really hard to have the conversation with respect to how can we get women on board? Well, the best way to get women, indeed anyone on board is to lift the law. So, so I've been looking a lot recently, local governments have, debating whether or not to lift topless bans, even without a court order. And there are lots of local governments that are doing this now in the name of gender equality. So I talk about it in my paper. Gainesville, Florida, a couple of years ago, said, you know, look, we should get rid of all gendered language from our civil and criminal code. All gendered language should go. We should use gender neutral language. And then they got stuck. The only thing that was a sticking point, and they did that, actually. They did that, actually. They said in the name, we need to be more sensitive to our LGBTQ citizens. So we need to be more sensitive to the diversity of gender out there. We need to be more sensitive to all of this. So they did this in the name of LGBTQ equality, but then they They got stuck on female toplessness and they couldn't get over it. And so the ultimate vote was three people voted to keep topless bands. Three voted not to keep topless bands. And there was somebody who wasn't there at the meeting, who wasn't even there at the meeting, had the tie vote and said, we're going to keep these topless bands because Gainesville's just not ready. And there have been a lot of other localities that are having these conversations right now. So Nantucket in Massachusetts did this last year. Evanston, Illinois, which is a very, very progressive city outside Chicago where Northwestern is super progressive, they're embroiled in it right now in ways that are entirely surprising to a lot of the people who live there who think, oh, we're a real progressive college town. And yet we're having conversations about this. And when I look into the minutes of those debates, what I have found, and this has been really interesting to me, is that there's a lot of pushback. There's been a lot of pushback by Black moms. And their view is, look, our daughters are already sexualized. All the time. I already have to worry about my daughter being sexualized. So if what you're saying, you're going to lift these bands, my daughter's body is going to become more of a sexual, this is more threatening, right? And I think that was really, really interesting because, you know, generally speaking, these so-called free the nipple movements, they have been composed, yes, of women, but white women. And so the racial dynamics here have to really be taken seriously as part of this larger conversation of like, who is our constituency? Are all women on board? No, not all women are on board. There are women whose concerns might break down along other identity lines that the Free the Nipple movement writ large hasn't taken into account.
SPEAKER_01:Okay, thank you so much for that. Very interesting discussion there. We briefly brought up the Buchanan case. I think it'd be a good opportunity to hand it over to Nia where we can maybe explore that case a little bit more and kind of the value of using it in your piece.
SPEAKER_04:Yes, good morning, Courtney, and thank you for coming to speak with us today. I had a question about the strategic decision to open with the Tilly Buchanan example, especially since we don't learn until the end of the chapter that she was ultimately charged for being topless in front of her husband. While I think it's a great example with the final outcome in mind, I was wondering if it's possible that the court had other considerations besides women's toplessness in mind, for example, family dynamics or taking into consideration into consideration the angry ex-wife that aren't present in the other cases discussed in your book. Some of my other classmates felt the same way about opening with that case in particular, and I wondered whether other readers have noted this and whether you considered any other openers. Other readers have definitely noted this. So this was something we talked a lot about in my seminar. It was just on Friday, actually. And my sister, who's one of my best readers, that was the first thing she said. She's like, wait a minute, do you really want to open with Tilly Buchanan, given just like the complexity of that? Especially given, right, to your question, have you thought about opening with another, you know, another story? There's so many of them, right? So like, there's so many ways I could sort of kind of use a narrative to service this issue, right? So why this case, given these sort of intrafamilial dynamics and all the other stuff that's going on? And here's my response, and a lot. So I'm glad you all asked about it as well. So I think the features of the Tilly Buchanan case that you just mentioned, right? The fact that there are family dynamics here. For me, this makes her case more not less infuriating from a sex equality perspective, right? And it's taken me a while to kind of see that and get to that place. But I think this is right, that it's more infuriating, not less infuriating. Why? Okay, so here's why. So here we have, like, it's almost a perfect sex discrimination hypothetical, right? Here we literally have a man and a woman who... who are in the exact same position. They are literally both topless, sitting next to each other, standing next to each other. Indeed, they are together, right? And they're in the privacy of their home, right? So this case is totally different from the other cases, most of which take place outside the home, where you're more liable to say, well, maybe I see the reason for regulation outside the home where people might see and all of this, right? These public sensibilities. We don't have public sensibilities, right? We're inside the place where, at least from a constitutional perspective, the home is where you can do things in constitutional law, even if the things you're doing in the home are illegal some of the time, right? So, and yet here, right, she doesn't get that sort of, she doesn't get sort of, the protection of the home, okay? So you have a man and a woman standing right next to each other in the same exact position. And what happened in that case is the kids said something like, oh, you're topless, right? And she said, I can be topless wherever he's topless. That's what she said, okay? And then they got into the shower and then, You know, the kids go home to their mother and weeks later, the cops show up and she's prosecuted. Tilly Buchanan's prosecuted. Now, what is she prosecuted for? She's not prosecuted for public nudity, right? She's not prosecuted for public nudity, probably because that town defines public in such a way that it doesn't apply to the home. So they go even farther and they define her, they charge her with lewdness. Lewdness involving a minor. Well, what is lewdness involving a minor? Lewdness involving a minor is being in a state of undress for females being topless with the intent to sexualize. Public nudity, intent is irrelevant. Lewdness, intent is very relevant. So then that leads to this question. Why did the town, that she was being lewd? What was it about her behavior that was lewd? Okay, so was this a situation where she took off her top, nothing was said, and the kids accidentally saw her naked from the waist up going into the shower? Do you think if the kids had come home and said to their mom, oh, hey, guess what? When our stepmom was getting into the shower, we saw her breasts. Like we accidentally saw her breasts. Why? Oh, she left the door open. I just, I mean, maybe I'm wrong here, but I highly doubt the mom would have called the cops. I think she would have said, oh, well, that was probably just, she just forgot to shut the door or you shouldn't have, you know, something like this. So what was it? What was it about Tilly Buchanan's behavior that was actually lewd? I think it's the fact that the fact that she asserted her right to be topless, right? I mean, clearly, there was nothing sexual about what was going on. What was going on was more political. Do you see what I'm saying? Like, she was saying, hey, why are you so taken by this? Your dad's topless. Why can't I be topless, too? That's what was said. So... Why that is interesting for me is because it really ties into something I'm trying to use the other cases to show, which is this. When women are topless in the public sphere, what courts often say almost consistently across the board is, you're just flaunting it. You're flaunting it. Like, especially... If you're topless in order to protest a topless ban, right? So some of these cases deal with topless ban protests, right? Where women go topless in order to protest a topless ban. And in those cases, courts really don't like that, right? They'll say, you're flaunting it. It's inflammatory when you do it in this way. It's inflammatory, right? It offends too much. And I think that's really fascinating. So that ties into Tilly Buchanan, right? The problem with her, I think, in the state's view and perhaps in the mom's view was you're going too far because you're asserting your right to be. Right. And that historically, when women assert, when gays have asserted their right to exist in certain places, they have been called, they have been accused of flaunting. Like when we try to assert our rights, that is when people who are ready sexualize them. And then by sexualizing them, you make them feel shame for asserting the right in the first place. There's a whole sort of history of, you know, same-sex couples deciding at some point a while ago, we are going to hold hands. We are going to hold hands in public. And because they knew that was really inflammatory, right? So I guess like the point I'm getting to is like, you know, I understand in some ways the family dynamics might make this a tricky case. But for me, it makes it a great case. Yeah, I just had a quick follow up to what you're saying. Because I, I too have a step parent. And like a lot of times when I'm around my stepdad, like he just does not walk around with his top off. And if I were to tell him, my mom or my dad, like, hey, my stepdad was topless around me, I think there would be outrage. So I think my question is, and the Tilly Buchanan case specifically, do you think that the case would have came out differently if, say, for example, they were her biological kids and her biological kids went, say, to the grandparents and said, hey, mommy was topless around me? So interesting. So interesting. I mean, look, I teach family law and I always tell my students, We have a lot of privacy in the home surrounding our bodies, but we have a lot of privacy generally. Like the married family gets a lot of privacy, but not when that married family dissolves. And when you have new kinds of family units within the home, like step parents and step kids, does that make sense? Like then privacy breaks down in all sorts of interesting ways. So just exactly to your point, right? Like does the fact that Is it children per se that we want to protect or certain kinds of children? Do we necessarily want to protect biological children from their quote unquote own parents? I'm sure that that is a subtext, but I love what you point out about the male being topless too, because a lot of my students who were from families, divorced families where they had a stepdad, confided, said, we didn't want stepdad walking around topless either, right? That for us was uncomfortable. So why is that okay? Why do we assume, and then this launches into a much larger conversation, why do we assume that the topless male body is not a sexual threat? Whereas the topless female body is inherently sexual? Why do we assume that the topless male body is not inherently sexual in a way that will offend third parties or make them feel uncomfortable, but we automatically assume that the topless female body is, right? So I completely agree with you on that point, right? So as with all sex equality questions, if we grant that this is a sex equality issue, now it's like, what's the solution? is the solution to make everybody cover up, right? Or is the remedy to allow toplessness for women too, right? And I completely agree with you. You know, that's a conversation that we, like maybe the solution isn't necessarily making toplessness allowed everywhere. Maybe it's, well, if you're gonna force women to cover up because of these reasons, right? then those have to apply equally to men. Thank you.
SPEAKER_01:Yeah, thank you. Very interesting dynamics at play there. We're going to pass it on to Lauren for her question.
SPEAKER_06:Yeah, thank you so much for being here. And I'm very excited to read the book when it comes out. As you've mentioned, a lot of these cases really are infuriating. So I'd like to ask about the challenges that you've seen to these cases of anti-topless laws. So you briefly mentioned that a lot of the constitutional arguments are rooted in fairness and equality, and others are rooted in using bodies as speech, which I thought was a really interesting argument that I hadn't previously considered. Do you more commonly see like Fifth and Fourteenth Amendment constitutional arguments against antitopless laws, First Amendment arguments, or arguments with a different constitutional basis altogether? And which of those do you see as having the greatest success rates in court? How do the particular venues impact those success rates? Kind of all of those follow-ups as well.
SPEAKER_04:Yeah, great question. So I would say typically, not always, but typically... When women are challenging, like they want a declaratory judgment that topless laws are unconstitutional, or when women outside commercial establishments like adult entertainment are prosecuted for being topless, they typically raise three constitutional claims. One, equality. Two, liberty slash privacy. Three, First Amendment. None of those claims have gotten traction. when women are raising them, including the First Amendment claims. The First Amendment claims, you know, so the First Amendment claims that they make are, so, you know, even if this is not pure speech that receives First Amendment protection, it is conduct that is inherently communicative. It is conduct that is inherently communicative. And as we know, First Amendment, the First Amendment grants some protection to communicative conduct so long as you can show, so long as you can show that the conduct was communicative and that the message that the conduct, that you had a message that you intended to give and all of this, right? That's communicative conduct. Just like, you know, the court has said when you burn a draft card, When you burn your draft card during the Vietnam War, that's communicative conduct, right? When you're protesting wars, wearing certain things on your arms, armbands, that's communicative conduct. So they tried to make that argument, right? This is communicative conduct that should receive First Amendment protection. Across the board, courts have rejected those claims. And they have said two things. One, it's not communicative. It's just conduct. There's no communicative element in it at all, which that is weird, right? Because you're like, wait a minute, topless women are so provocative. They provoke such an expressive response. How could it possibly be non-communicative? A non-communicative conduct is like, you know, picking something up off the street, walking down the street, right? That's purely conduct most of the time. But this is You know, it is communicative because it is seen that way by viewers. But they say it's just conduct. It doesn't have any communicative element in it. Number two, courts say, even if it did on the margins have some communicative dimension to it, that communication has no social value. That communication has no value to the marketplace of ideas. That's fascinating because even pornography, the court has said even obscenity, which is sexually explicit speech, pornography, receives some First Amendment protection. So what they're saying basically is female toplessness is even less, it's even more sexual, less worthy of First Amendment protection than pornography. So there's that. Now, new dancing, adult entertainment. They also bring First Amendment challenges when zoning laws, a lot of the time the regulation of topless bars comes in the form of property law, of zoning laws. You cannot exist here if you have topless women inside for commercial entertainment. What's a topless woman under these definitions? A woman who is not wearing pasties on her nipples. So these laws say a woman can be topless as an adult entertainer, but only if she's wearing a pasty. And the adult entertainment places bring First Amendment. And here they actually have a better claim, right? Because they can say, well, wait a minute, new dancing is inherently communicative. That's why people go there. So you can't deny that it doesn't have some First Amendment claim. dimension. And the Supreme Court has said, yeah, you're right. New dancing is communicative conduct, but the regulation of the nipple within that space has nothing to do with communication. So what's interesting, when the owners of the adult entertainment places bring their First Amendment claims, courts take them more seriously and even though they too often lose. But at the very least, they wrestle with the issues. Whereas when women themselves are bringing the First Amendment claims, it's like, no, there's nothing there. Yeah. So I don't think, I do not think First Amendment is going to be, would be a ultimately fruitful way of getting rid of this stuff. Just because of all the exceptions that First Amendment law has built into it.
SPEAKER_01:We're going to, Give it to John Henry with some more questions kind of surrounding the Supreme Court and constitutional law, how that kind of plays a role.
SPEAKER_00:Yeah, thanks, Anthony. Thanks, Courtney. I want to ask a follow-up to Lauren's question about strategy and also to circle back to your previous comments on the slippery slope. By bringing up Bostock, I think, in case our listeners don't know Bostock well, 2020 Supreme Court cemented a very textualist approach. the sexual discrimination in Bostock v. Clayton County, building upon City of Los Angeles v. Manhart, other prior cases to establish a formalistic approach to constrain explicit sex-based classifications. For me, this case seemingly restricts states from banning drag performances by people with the male sex and breast imitations, which you discuss in your book, when those states would permit dances by people with the female sex and natural breasts. And as you discuss in your book, prohibitions on toplessness rely on kind of the same formal logic as these anti-drag laws. So maybe undermining anti-drag laws under Bostock could provide an avenue for striking down toplessness bans on formalist grounds. But based on both your sociological analysis in your book and also your discussion today about the slippery slope towards toplessness and nudity. It seems like concerns over gender and control would undermine any formalistic approach. So in case people bring up Bostock in response to your book, like I am right now, does Bostock provide an effective foundation for new challenges to these laws? Or should advocates base their strategy on sociological and extra textual analysis that extends beyond formalistic arguments?
SPEAKER_04:Love it. Yeah. So, okay. So Bostock, so let's start outside Bostock. So I would say the topless line of cases, right, fit in with the line of cases under the 14th Amendment dealing with situations where the court has created an exception to formal equality based on real biological differences. Right. Right. So this is an entire line of cases where the court seems to say, look, when men and women are not similarly situated because of their bodies, formal equality doesn't apply. Therefore, differential treatment is OK. Right. So the Thomas's cases really just kind of mimic all of those cases. Look, this was Dobbs. So in Dobbs, I don't know if you remember the moment in Dobbs where Alito says, right, sex equality scholars submitted an amicus brief in Dobbs saying, look, even if you reverse Roe, abortion should still be protected as a matter of constitutional equality. Because Roe was a was a liberty privacy case. It wasn't an equality case. Right. So reversing Roe doesn't mean that abortion is unconstitutionally protected. It could be constitutionally protected under equality. Right. Now, that was not an issue before the courts. The parties challenging the law, the Mississippi law in Dobbs initially made an equal protection argument, but they dropped it eventually before the Supreme Court. But these sex equality scholars decided to brief it anyway. Now, at the very beginning of Dobbs, Alito says, oh, wait a minute, before we launch into why abortion is not a fundamental right as a matter of privacy, let's consider the equality, right? Right. is do abortion laws, do criminal abortion laws violate the equal protection laws? No. Why? Because abortion is unique to women. Men and women are not similarly situated with respect to abortion because men don't have them. And if men don't have them, formal equality doesn't even apply. Does that make sense? So the toplessness cases fall into that entire line of cases dealing with the ways in which real biological differences operate as an exception to formal equality logic, okay? Ball stock, as you point out, is all about formal equality logic, right? That is exactly what it is. But I would say Bostock doesn't at all disturb the doctrine of real biological differences as an exception to formal equality, right? So for one, If you look, Bostock says, Gorsuch says, what's the definition of sex that we're looking at when determining whether or not sex discrimination is sexual orientation and trans discrimination? A biological one. So their starting point is sex is something real. Sex is something biologically determined. Maleness and femaleness are real, right? They're not disturbing that, right? nor are they ever saying like real biological differences. They never even bring up real biological differences as an exception to the formal equality logic, right? It never comes into play. Vasek never brings that up, right? But at some point, recall, Gorsuch says at the very end, as Supreme Court decisions are wont to do, let me tell you what this case isn't about, right? Let me tell you what this case is not about. It is not about bathrooms. It is not about locker rooms. It is not about spaces where people are sharing their bodies. Do you see what I'm saying? Implying that this formal equality logic of BOSEC, which seems great for this issue, would fall out because of this kind of real biological differences exception.
SPEAKER_00:Thank you so much for explaining that. I think that's really important to understand this whole conversation.
SPEAKER_04:Yeah. Yeah. And thank you for the question, because I was like, that's
SPEAKER_03:yeah. Great. Well, so, Courtney, thank you so much for doing this. It was great to finally, quote unquote, meet you. Same. Kimberly, Anthony, any last minute thoughts or just parting goodbyes from you?
SPEAKER_02:No, I just want to thank you again, Courtney, for your time. I very much enjoyed this podcast along with co-hosting with Anthony. I learned so much. Super interesting questions. And I'm sure that our listeners appreciated this episode. Thank you.
SPEAKER_04:Thank you. Your questions have prompted me to go in different paths. So that is the best a scholar could hope for. Thank you so much. They were wonderful.
