how to legally #freethenipple in australia

i-D investigates the legal mess around female toplessness, and discovers it's less about the law and more about public opinion.

by Katherine Gillespie
11 March 2016, 2:55am

In the past month, lawmakers in the US have been clearing up their stance on free the nipple. The state of New Hampshire just voted to officially liberate female nips. A New York City topless book club garnered attention for its public displays of nudity, a vocal reminder that female toplessness has been legal in the state since 2002. Even Bernie Sanders made sure the world knew he was officially cool with it. Here in Australia though, the issue has remained murky.

In January a Brisbane group of Free the Nipple supporters held a topless picnic to celebrate and attempt to desexualise women's bodies in public. The lead up the event drew considerable media attention, largely focused on whether police would interfere. Ultimately, things went off smoothly and although the police drove by, they made no arrests. However, the threat of being charged was still present enough to impact attendance, only around 50 of the 800 RSVPs actually showed up.

This Sunday another Brisbane Free the Nipple event is planned but the attendees are still left wondering whether their presence is illegal. To try and get to the bottom of the confusion i-D spoke to a representative from the Queensland Police about the legal implications of going topless while female.

The representative said toplessness is unlikely to get you arrested or fined for indecent exposure. While indecent exposure laws so vary state by state, the common rule is that they apply to genitalia, which doesn't include breasts or nipples.

Where the breakdown emerges is that while you might not be arrested for indecent exposure, you can still be picked up for other related but less definable offensive.

So technically, both men and women in Australia can go topless in many public spaces. But any woman knows their toplessness is far more likely to attract attention, including police attention, which can range from being told to put your top back on to fines.

Where the breakdown emerges is that while you might not be arrested for indecent exposure, you can still be picked up for other related but less definable offensive. The police representative warned that depending on the officer you're dealing with and complaints of those around, you may be arrested or fined for causing a public nuisance or offensive behaviour.

Obviously "offensive behaviour" is a largely subjective concept. In one public space being topless as a women may be seen as totally cool, and hence legal. In another, a single person being uncomfortable can see it deemed as an illegal act.

This is largely what New Hampshire was clearing up when its lawmakers voted against women showing their breasts with "reckless disregard" becoming a misdemeanour. They made the issue broader than just someone getting offended.

Normalising the presence of female breasts in public is stuck in a frustrating legal quagmire.

At home, and without New Hampshire's clarity of mind, anyone interested in actually normalising the presence of female breasts in public is stuck in a frustrating legal quagmire where your likelihood of being arrested isn't dependent on laws, but the prudishness of other individuals.

You're actually less likely to be hassled at a mass demonstration, like the Brisbane protest, than unbuttoning alone at the beach. "The police would attend a topless protest or gathering as routine, but only to see if it was causing some kind of public disruption or nuisance. In that case, someone going topless could be arrested under the Summary Offences Act," the Queensland Police representative concluded.

Outside of a big organised group, the only other place that you can free the nipple in public without recourse is while breastfeeding. Under the Federal Sex Discrimination Act 1984, it is illegal in Australia to discriminate against a person either directly or indirectly on the grounds of breastfeeding. But let's be honest, that's less of a body victory and more of a basic human right.

The legal ambiguity is incredibly frustrating for anyone actively working to change the public's view of women's bodies. Speaking to i-D McKenzie Raymond, a topless activist and the convenor of the Sydney-based feminist group Fcollective, sums the situation up as "it's all just sexist bullshit."

The law is so vague, and even police themselves don't seem to know.

Raymond says she's poured countless hours into trying to firm up what can and can't get you arrested, and define the legal parameters around her own activism. She's never found a satisfying answer: "I have a lot of trouble finding out, because there are so many legal grey areas when it comes to toplessness. I did a callout two or three weeks ago on Facebook and have asked lawyers and law students and nobody really knows. The law is so vague, and even police themselves don't seem to know."

As a result she's had a number of encounters with the police. Most recently she was questioned by authorities while participating in a full moon nude swim event in Sydney, that was eventually shut down by cops. "Basically they told me that if I took my shirt off and went swimming they'd arrest me on the grounds of offensive behaviour." When she asked why men attending the event and walking around shirtless weren't threatened with arrest she was told to "stop asking stupid questions."

And that's where we're left, battling over what is largely seen as a "stupid question". Without legal parameters around female toplessness, activists like Raymond are left unable to participate in fruitful dialog around the rights of women to show their bodies. It may seem like a small thing, but it's a part of public life where women are refused full autonomy over their body.

The Free The Nipple debate has undoubtedly been corrupted by a culture that enjoys the easy clicks it attracts. But moving past its role as a salacious news story, the fight belongs to the family of public discourse where we once fought for birth control, abortion access and even the ability to vote. It's a fight to say that strangers can't say what is and isn't okay to do with our bodies. 


Text Katherine Gillespie 
Photography Kayt Jones

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