Do gender differences in indecent exposure laws violate the Equal Protection clause?

[thorny_locust]

@LSLGuy

female breasts are private parts because we mostly all agree, and have agreed for centuries, that they are. Whereas we mostly all agree, and have agreed for centuries, that male breasts aren’t.

Who’s “we”?

There have been plenty of times and places when female breasts were ordinarily exposed, without anybody thinking anything much of it. And there have been times and places in which exposed male breasts would have been considered shocking. Even in this current society, there are circumstances in which a bare-chested male is considered inappropriate and may well be considered to be making an inappropriate sexual display, even presuming he’s got pants on.

@LSLGuy

biologically there is a profound difference: one kind can make milk & one can’t.

That’s not a difference in the breast; it’s a difference in the hormones.

Male breasts can make milk, and occasionally do.

@Max_S

The right to go topless does exist, trivially, but I defy you to argue that it is so important as to hold the same protections as basic liberty or the right to privacy in one’s home.

It is not true that only the most drastic cases are entitled to be addressed. Following that logic would leave us all unable to claim any right other than the right not to be tortured to death.

– and I also can’t think of any public interest in prohibiting “sodomy”.

[Max_S]

The citation would be Lawrence v. Texas, respondent’s brief. Unfortunately, the only free online resource that I am aware of which offers access to Supreme Court briefs (Findlaw) seems to have recently removed that feature from their website.

You can hear (or read) Texas present its oral arguments on Oyez, though. Counsel for respondent tries to argue that the fact that the law is still on the books means it represents public morals.

Excerpt from transcript of oral arguments

Charles A. Rosenthal, Jr.
–Yes, sir.

And it’s our position that Bowers versus Hardwick is still good law, that there’s nothing that’s changed about the fundamental liberties or the… or the history or traditions of our country that should make the analysis in Bowers incorrect any longer.

The petitioner also claims that the mores of our nation have changed to the point where physical homosexual intimacy is now part of the fabric of American values.

And it’s our position this cannot be correct.

Even if you infer that various States acting through their legislative process have repealed sodomy laws, there is no protected right to engage in extrasexual… extramarital sexual relations, again, that can trace their roots to history or the traditions of this nation.

Stephen G. Breyer
Their basic argument, I think–

Antonin Scalia
–I… I’m sorry.

I didn’t get that argument.

I thought you were going to say… you were responding to the argument that the morals haven’t changed, or that the morals have changed so that homosexuality is now approved.

And you respond to that by saying that there’s no tradition?

I mean, that’s… that’s a totally different argument from tradition.

I mean, the… the argument is tradition doesn’t matter.

Charles A. Rosenthal, Jr.
Well, history… tradition does not matter in terms of whether or not it… it can be a protected liberty interest.

Antonin Scalia
Why… why do you think that the public perception of… of homosexual acts has… has not changed?

Do you think it hasn’t?

Charles A. Rosenthal, Jr.
The public perception of it?

Antonin Scalia
Yes, yes.

Do you think there’s public approval of it?

Charles A. Rosenthal, Jr.
Of homosexuals, but not of homosexuality activity.

Antonin Scalia
What do you base that on?

Charles A. Rosenthal, Jr.
I beg your pardon?

Antonin Scalia
What do you base that on?

Charles A. Rosenthal, Jr.
Well, even–

Antonin Scalia
I mean I think there ought to be some evidence which… which you can bring forward?

Charles A. Rosenthal, Jr.
–Sure.

Antonin Scalia
Like perhaps the failure of the Federal Congress to add the sexual preference to the list of protected statuses against which private individuals are not permitted to discriminate, that addition has been sought several times and it’s been rejected by the Federal Congress, hasn’t it?

Charles A. Rosenthal, Jr.
Yes, sir, and… and in addition, what I was trying to say by the fact that various States have changed their position on sodomy, they’ve done it through the legislative process.

And that’s where we believe this belongs, is in the State House of Texas, not this Court.

Antonin Scalia
Yes, but I thought you were responding to the argument that the public perception hasn’t changed.

That there still is… is a public disapproval of homosexual acts.

And you can’t establish that by saying that the States have repealed their homosexual laws.

Charles A. Rosenthal, Jr.
Well, I think it goes back to whether the… where… whether people in Texas and people in the other States that had this law on their books actually accepted through their representative government.

I think it comes down to the… the actual people who… who determine the consensus and mores of the State or the… or the elected legislators.

~Max

[Max_S]

@begbert2

My point was that “public morals”, whatever the hell they are, clearly have hard limits to how exceedingly persuasive they are as a legitimate governmental interest.

I think you misunderstand. “Exceedingly persuasive justification” (substantially related to legitimate government interest) is the standard used to overcome the right to equal protection under the laws in cases of gender classification. It is not the standard used to overcome the right not to be enslaved, it is not the standard used to overcome the right to privacy, and it is not the standard used to overcome the right to go topless.

~Max

[elbows]

The primary reasoning behind assigning custody to the wife is because she represents the exact person who was previously, for x numbers of years, deemed competent and capable, BY THE HUSBAND to fulfill that role as primary home keeper and childminder.

Divorce is unfortunate, but it’s going to be an uphill battle to try now to argue she’s unsuited to the task. ‘But I don’t want her doing it now’, is going to go hard against continuity for the children.

It’s really not hard to understand why it’s the way it is.

[begbert2]

@Max_S

and it is not the standard used to overcome the right to go topless.

You toss this in here, but if the argument is that men can go topless and women can’t, then isn’t the right to equal protection under the laws in cases of gender classification exactly on point?

[Dark_Sponge]

@Max_S

@Dark_Sponge

I thought this thread was going to be talking about visible genitalia laws.

I’m not aware of gender differences in laws prohibiting indecent exposure of genitalia, but I think if such differences do exist, they would be on-topic.

~Max

The laws are the same for both men and women. There have been instances in recent news of women not being charged because (although they are nude) their genitalia is not visible. The men in the same group were charged.

I have no problem with this law as written and I don’t believe it violates the Equal Protection clause.

[Max_S]

Not if you’re trying to say there are limitations on using public morals as a government interest to satisfy the burden of “exceedingly persuasive justification”.

~Max

[thorny_locust]

@begbert2

You toss this in here, but if the argument is that men can go topless and women can’t , then isn’t the right to equal protection under the laws in cases of gender classification exactly on point?

Exactly.

Nobody’s arguing that ‘no shirt, no service’ is discriminatory – because it applies to people of all genders. The issue is precisely whether women can go topless in places and circumstances in which men are going topless.

[Dark_Sponge]

@elbows

The primary reasoning behind assigning custody to the wife is because she represents the exact person who was previously, for x numbers of years, deemed competent and capable, BY THE HUSBAND to fulfill that role as primary home keeper and childminder.

Divorce is unfortunate, but it’s going to be an uphill battle to try now to argue she’s unsuited to the task. ‘But I don’t want her doing it now’, is going to go hard against continuity for the children.

It’s really not hard to understand why it’s the way it is.

It’s a bit off topic, but I know from experience this is not the only reason the wife is chosen.

I was the primary care giver of my two sons while attending college and they were taken away from me and given to my ex wife during the divorce.

[Jimmy_Chitwood]

@Max_S

Well, I could see it going either way. A state could have a referendum on the question of whether exposing female breasts in public is immoral whereas exposing male breasts is not immoral. The notion does not seem absurd on its face - I have personally grown up all my life under the unquestioned assumption that exposing the female breast in public is, at the very least, frowned upon. I feel bad for those breastfeeding mothers who are ashamed of breastfeeding. Maybe the sense of public morals are unfortunate, but it doesn’t shock my conscience to learn that a woman is ashamed of showing her breasts in public. That’s normal. If I were a judge, a referendum would go a long way towards convincing me that prohibiting the exposure of female breasts in public serves to uphold public morals.

~Max

Well, yeah, agreed, that could happen, but you think that makes sense and I don’t, and that’s really my point. It’s you offering an example of the kind of subjective, fuzzy “getting away with it” that I said predominates. That’s not you satisfying the intermediate scrutiny test in any objective sense. Otherwise, there is no such thing as judicial review; you just ask the people if, say, keeping blacks out of school is narrowly tailored to achieve compelling interests, and then you use that referendum to demonstrate that your law is good. How could the people be wrong about what the government’s interests should be?

“Doesn’t shock my conscience,” “unquestioned assumption” and “does not seem absurd on its face” isn’t an articulation of a substantial relationship to an important governmental interest. It’s you noticing how things have been in your life. The point of judicial review isn’t to notice what’s popular and what isn’t. It just works that way a lot of the time because of inertia. In fact, one might say, the point of judicial review in this context is specifically to say that there are higher standards for certain infringements, and then to identify when those standards aren’t being met.

[RitterSport]

@Max_S

Counsel for respondent tries to argue that the fact that the law is still on the books means it represents public morals

This is hilariously circular. Thanks for the response!

[Jimmy_Chitwood]

@Kearsen1

I haven’t said that it was but any attorney I have ever talked to agrees.

So is there a gender bias in child custody? Can it be factually answered?

Depends what you consider evidence of bias.

It is statistically true that mothers get custody more often. However, this is overwhelmingly because the number of father and mothers who seek custody are nowhere near equal. Very broadly speaking, while it’s very hard to really track, the numbers I’ve seen suggest that fathers and mothers who are similarly situated win custody about the same amount of time when they seek it. That’s not to say there is no bias, because custody is determined by a complex series of factors, and there could, of course, be bias at play behind those numbers. Anecdotally, it has certainly not been my own experience in 150 or so contested custody cases that the mothers seemed to be favored by the court.

It is not legal for a state to have a custody law that presumes that the mother should have custody. Those statutes used to exist, and that was found discriminatory.

[LSLGuy]

@thorny_locust

Who’s “we”?

There have been plenty of times and places when female breasts were ordinarily exposed, without anybody thinking anything much of it. And there have been times and places in which exposed male breasts would have been considered shocking. Even in this current society, there are circumstances in which a bare-chested male is considered inappropriate and may well be considered to be making an inappropriate sexual display, even presuming he’s got pants on.

Remember I’m not arguing that this is sensible. I’m arguing that it’s mostly a historical accident. Sure, various traditional tribes don’t sexualize female breasts and don’t insist the women in that tribe wear shirts. This isn’t biology, it’s society. Human society in general and US 2020 society in particular.

For whatever silly reasons, much of “western” society has been fussy about exposed female breasts under almost all circumstances for enough decades centuries that it has long ago become “tradition” or “everybody just knows” to keep them covered up. And here we are with laws enforcing that commonly (not universally) held opinion.

Must the law be that way? Heck no. Must the personal opinion of the average person be that way? Heck no.

But those aren’t the issue of the thread. As I understand the OP, he’s looking for narrow legalistic arguments about how the law should operate and be defended or overturned as law, not the specifics of what social practice is or ought to be.

I just quibbled about his terminology where, in my view, he made a normative statement about inevitable fact that I thought was better said as a normative statement about the current state of social attitudes. Social attitudes derived from the random walk of history, not any sort of inherent reality-based physics.

IMO the legal defensibility of historical accidents of social attitudes differs from the legal defensibility of practical necessity or hard physics.

Sorry if I misled you.

[Chronos]

@begbert2

Wait, is that an accurate description of society’s perspective on breasts? My read of the situation is that anybody can decide that they don’t want their chest exposed regardless of gender, so there’s nothing about a male chest that makes it public property (so to speak). What’s actually happening is that currently there’s a greater tendency for women to choose to keep their breasts covered (for various reasons), and that there’s a tendency for authority figures to want to keep women’s breasts covered because either a) males are horny out of control beasts who can’t control themselves and breasts are covered to maintain public order, or b) women are property of some kind and only their man can decide who sees their breasts.

Do you believe that laws prohibiting public exposure of genitalia are unjustified? Because it seems the exact same argument would apply there.

The argument for laws against exposing the vulva, laws against exposing the penis, and laws against exposing the female breast, are all the same: Such parts are viewed by society at large as being inherently sexual, and so their exposure is a sexual imposition on all those present to view them. Fair or not, society views female breasts as inherently sexual, but does not view male breasts as inherently sexual.

The question, then, is just whether the courts should be bound by this asymmetrical public view, or by equal protection arguments.

[begbert2]

@Chronos

Do you believe that laws prohibiting public exposure of genitalia are unjustified? Because it seems the exact same argument would apply there.

Come to think of it, I’m a little hard-pressed to think of a good justification for the laws against public exposure of genitalia. “But I don’t want to see it!” seems pretty weak, considering the massive latitude the first amendment gives to various other forms of expression. “But I don’t want my children to see it!” seems similarly weak.

@Chronos

The argument for laws against exposing the vulva, laws against exposing the penis, and laws against exposing the female breast, are all the same: Such parts are viewed by society at large as being inherently sexual, and so their exposure is a sexual imposition on all those present to view them. Fair or not, society views female breasts as inherently sexual, but does not view male breasts as inherently sexual.

The question, then, is just whether the courts should be bound by this asymmetrical public view, or by equal protection arguments.

I feel like I should state here that I’m not a lawyer, but I think that that that really comes down to the relative “strength” (to use a non-legal term) of the arguments. For example, equal protection arguments are supposedly hella strong, but the argument that “inherently sexual” things should be locked away like the disgusting things they are seems like something that the state, generally speaking, shouldn’t give much of a crap about. Particularly given that people employ first amendment freedoms to put sexual stuff out in the open all the time.

[Max_S]

@Jimmy_Chitwood

Otherwise, there is no such thing as judicial review; you just ask the people if, say, keeping blacks out of school is narrowly tailored to achieve compelling interests, and then you use that referendum to demonstrate that your law is good. How could the people be wrong about what the government’s interests should be?

My understanding is that the black students’ individual rights to education is (was) more important than the state’s interest in segregating schools as a matter of public morality, and that segregation itself harms the segregated students’ education. If the right to education was less fundamental than public morality, or if segregation did not harm the segregated student’s education, I think that undermines the legal basis of Brown v. Board. Legal interpretation of that case is controversial, and of course, the states didn’t just rely on public morals.

~Max

[Kimstu]

@begbert2

Come to think of it, I’m a little hard-pressed to think of a good justification for the laws against public exposure of genitalia.

Three words: Fecal coliform bacteria.

Yes, there are untold millions of excellent little toxic reasons why people’s butt/genital regions should be covered when they’re out in public where those regions, or the hands that have touched them, are likely to shed bacteria onto objects that will convey them to other people’s hands and faces.

Now, if you want to make a case in favor of allowing the mandatory clothing on butt/genital regions to be made of transparent fabric, there is AFAIK no similar public-health argument against that.

@Chronos

The argument for laws against exposing the vulva, laws against exposing the penis, and laws against exposing the female breast, are all the same: Such parts are viewed by society at large as being inherently sexual, and so their exposure is a sexual imposition on all those present to view them. Fair or not, society views female breasts as inherently sexual, but does not view male breasts as inherently sexual.

What “society” are you talking about? In several European countries, for example, it’s legal for women to be topless anywhere that men can be topless, even in spaces where full nudity is not permitted. So, clearly, it is not a given that differences in cultural perceptions of the “inherently sexual” nature of male vs. female breasts require the law to make different rules about exposing them.

[DocCathode]

I see it as unfair and discriminatory. I can’t think of a good reason, let alone a compelling one why women should be required to cover up when men can go uncovered. I am not coming from a perspective of ‘Boobies! hur hur’. It just doesn’t make sense to me. Men have a right women do not have (at least in most states) based on what?

[begbert2]

@Kimstu

Now, if you want to make a case in favor of allowing the mandatory clothing on butt/genital regions to be made of transparent fabric, there is AFAIK no similar public-health argument against that.

Sure, I’ll take the counterargument you made to your own argument and let you make the argument against your argument for me. (Hey, who am I to refused what’s presented on a silver, er, transparent platter?)

Transparent clothes would violate current exposure laws, meaning that we’re still short of any real justification for those laws. And of course the coliform argument is definitely equal-protection compliant, what with bacteria being quite willing to grow equally in the butts of both men and women.