Women comprise 50.4% of the population of Canada meaning that up to half of the entire population will at some point in their lives be faced with the decision of whether or not to breastfeed their child. Although the law protects women against facing discrimination for breastfeeding and the laws of certain provinces allow women to be topless in public, society is still uncomfortable with breastfeeding even though advertisers feel free to use the naked or near-naked female body to sell products. For this post I will examine the history of the legality of breastfeeding and public nudity as well as the social stigma placed on the act in light of political viewpoints.
The Canadian Charter of Rights and Freedoms affords protection to women on the basis that nobody can be discriminated against based on their gender, that both males and females have equal rights (Section 28). According to the Ontario Human Rights Code, this equality extends not only to the matter of gender itself but also to the biological status of pregnancy. Section 10(2) of the Code states, “The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.” Building on the establishment that gender includes pregnancy, the Ontario Human Rights Commission’s Policy on Discrimination Because of Pregnancy and Breastfeeding states that, “‘Pregnancy’ includes the process of pregnancy of conception up to the period following childbirth and includes the post-delivery period and breastfeeding.” Clearly the law is decided that one cannot discriminate against a woman based on her gender, which includes pregnancy and also breastfeeding. However, this does not apply to all locations in Canada, but only parts of Ontario and British Columbia. In the rest of Canada, location-specific laws may apply. For the most part though, the consensus tends to be increasingly liberal and perhaps we may soon see similar laws put into effect in the rest of the country.
In July 19, 1991, Gwen Jacob², a resident of Guelph, Ontario was arrested and charged with indecency after walking home shirtless during a warm day, with temperatures reaching 33 degrees Celsius. Jacob was found guilty under Section 173(1)(a) of the Criminal Code of Canada and fined $75. She appealed, but was dismissed by the Ontario Court. Upon this, Jacob appealed to the Ontario Court of Appeal and, on December 9, 1996, she was acquitted on the basis that her act of toplessness was neither sexual or indecent. Section 173 incriminates “everyone who willfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person” but since then, toplessness has been determined to not fall under the category of an indecent act provided it not be sexual in its nature or commercial (for example, a prostitute cannot use her breasts to elicit clients). Jacob’s case (R. v. Jacob) has become famous and is now taught in Criminal Law courses. Public nudity is now allowed in parts of Ontario and British Columbia. The remainder of the provinces and territories have their own laws which are usually treated on a case by case basis, but generally tend to be very liberally accepting of similar acts. Although toplessness is treated, if it is treated at all, as a minor crime in the eyes of the law, it is still seen as an unacceptable act in the eyes of society. Even though it falls within their legal rights to do so, many women chose not to go topless on the hottest of days.
Considering that the law (in certain areas) protects a woman’s right both to avoid discrimination for breastfeeding her child as well as her right to appear topless in a public location, why is it that society still places a negative stigma on breastfeeding in public? I recently conducted a Facebook survey, in which out of 20 respondents, 100% of them reported that they feel breastfeeding should be allowed in public, but 15% of them required the condition of a cover in the form of a blanket or shawl, etc (30% gave no comment about a cover, leaving 55% expressing comfort with the idea of seeing a woman breastfeed in public without using any means of covering it up). While this is but a small sample of the population, it is clear that although society sees breastfeeding as a natural act, very few are comfortable with the reality of seeing a woman breastfeed in public. Repeatedly the issue comes up in social media, with many bloggers writing about their own experiences being asked not to breastfeed openly. We would not still be talking about it if there wasn’t so much controversy surrounding the topic.
It does appear however, that the act of breastfeeding itself is not the issue at hand. Rather, the controversy seems to stem from the sexualization of women. Breastfeeding is a feminine-exclusive act in society (biologically men can lactate too) that does not sexualize a woman’s body. To the contrary, breastfeeding is far removed from sexuality. Does the social stigma stem from misogyny? Cecil Adams¹ makes an interesting case from a biological perspective in her column on The Washington City Paper, stating, “Female humans are the only primates with permanently enlarged breasts, which has led to much harebrained speculation about why… (a) male apes mount their paramours from behind; (b) female apes are only in heat at certain times; (c) as a signal that the female ape is sexually receptive, her buttocks become enlarged and red; (d) humans generally do it face to face, and women may be game at any time; (e) any billboard of human female availability thus would logically be installed permanently in front; (f) inasmuch as the female breast becomes enlarged anyway during lactation, it is the obvious candidate. In other words, men like the female breast because, at a primordial level, it reminds them of a monkey’s butt.” Her theory is clearly writ with a subtle sense of humor, but she gets more serious as she continues, “Exposure of much (as distinct from all) of the human female breast is decidedly not taboo. On the contrary, it is the basis of entire industries.” The female breast is advertised and promoted as an object of sexual desire, yet when it comes to nutrition, the breast becomes something that needs to remain out of sight. Why this is the case appears unknown, as most if not all logical conclusions gathered from the preceding evidence suggest the opposite should be true.
Could then, the stigma surrounding breastfeeding, simply be a matter of Puritan tradition? Where modesty is enforced strictly upon both genders (albeit more fiercely upon women) to the point that any possibility of public nudity, including breastfeeding, is considered taboo, would it be fair to expect that most people’s feelings of discomfort simply come from unconscious social rules that they pick up in early life? If this is indeed the case then it is simply a matter of negative reinforcement that perpetuates the myth that there is something inherently dirty or shameful about breastfeeding in public. After all, in much of Europe, no such stigma exists, and women openly breastfeed their child without giving it a second thought. Could negative connotations about breastfeeding have simply become the product of American culture itself, or even extending back to the Victorian era?
Who then benefits from these recent protests? Does it truly serve the public at large to allow women to breastfeed in public, or to go topless, as opposed to merely being a neutral side-product, neither helping nor harming anyone? This of course is where the issue turns from being a matter of public nudity to an infringement on free rights. If men can take their shirt off at the beach without facing judgement, then women ought to be able to do the same, or else we have an inequality. It may inconvenience women to have to leave public sight to breastfeed their child, but if none embrace the protest then it may seem like women ought to accept this as reality. However, this would be a very short-sighted conclusion to arrive at. We cannot as a society expect to get away with forcing others to inconvenience themselves so we can avoid taking responsibility for our own reactions. This would be cruel, unequal, and inhuman. If the tables were turned and men were expected to wear shirts on a hot day and women were not, would men everywhere protest? No doubt many of us would accept that as a fair trade, but that speaks further to how far we have sexualized the naked feminine form, that men would gladly suffer a mild inconvenience to leer at a woman’s breasts. In reality, the tables are not turned, yet men still leer.
In conclusion, the law protects a woman’s right to avoid discrimination for breastfeeding as well as her right to go topless in public (with restrictions), and the social consensus remains that breastfeeding should be allowed (although again, often with restrictions), but the fact remains that it is a topic that still makes many people uncomfortable when faced with reality. In theory, everyone would like to appear to be more accepting than they are, and this could contribute to the discontinuity of what people say they feel and what they do. I will leave you on a positive note, with the story of Julia Wykes³, who was defended by a barista at Starbucks in Ottawa after being scolded by a customer for breastfeeding her child in public. As long as there remains people who help to defend the rights of those being discriminated against, society may hope to change for the better after all.