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In much of the western world, decency laws require women to wear swimwear that covers their breasts; for men there is no such requirement.

In jurisdictions that recognize individuals' self-identification -- such as transsexuals (in various degree of transition), non-binary and intersex persons -- how do these laws apply?

Must a man, who has just started to transition into a female, wear female swimwear eventhough he is still flat-chested? Can a woman, who feels that she is actually a man, take off het bikini top and expose her breasts?

bdb484
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M. Wind
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    I think the extraneous commentary obscures a suitably narrow (and interesting) legal question: If the law requires women to cover their breasts in public, how does that law apply to gender-nonconforming people, etc.? – bdb484 Aug 08 '22 at 18:56
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    @bdb484 Yes that is an interesting and possibly answerable question. – David Siegel Aug 08 '22 at 19:04
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    The laws requiring women to cover their breasts would by all means intend to be concerned about the factual body morphology rather than gender identification. Simply put, if you have female-looking breasts you've got to cover them, no matter how you identify yourself. – Greendrake Aug 08 '22 at 19:10
  • I don't mean to be pedantic here but there are loads of places men would be denied access to if their torsos were uncovered. There exist places to men without ties would be denied access to. Such an odd plainly false premise to base a question on. – Neil Meyer Aug 08 '22 at 19:29
  • Where were these decency laws when I was in my twenties… – gnasher729 Aug 08 '22 at 19:54
  • @NeilMeyer What premise is false here? – bdb484 Aug 08 '22 at 19:58
  • That men are not subjected to the same decency laws as women. – Neil Meyer Aug 08 '22 at 20:02
  • Sure we should campaign for more topless female beachgoers. Let's just get rid of the concept of bras altogether. I mean if this is the line in the sand (excuse the pun) that the lgtb+ people want to draw then I'm ok with it – Neil Meyer Aug 08 '22 at 20:05
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    I'm going to question the initial assumption of question: "In much of the western world, decency laws require women to wear swimwear that covers their breasts [...]" according to Wikipedia (warning: NSFW images), most countries listed there which I would consider Western do not have these laws or leave it to municipal by-laws (though this is by no means a complete list). To my surprise, this includes most US states too. – DPenner1 Aug 08 '22 at 20:12
  • In practice this will rarely arise since trans people are often very self-conscious/dysphoric about their appearance and will avoid going swimming until they can “pass” as their gender. For example, a trans man (FTM) might prefer to wait until after top surgery so that they have male-presenting nipples – calling attention to their breasts is the last thing they want. The issue is less pressing for trans women (MTF) since feminine swimwear tends to cover up more than masculine swimwear. Sucks for enbies though that don't identify with any particular binary gender stereotype. – amon Aug 08 '22 at 20:25
  • @NeilMeyer I'm sure you're correct that there are places and contexts where men and women are subjected to identical standards, but it seems obviously incorrect to suggest that parity in Contexts A, B, and C disproves parity in Contexts X, Y, and Z, which are the ones OP is asking about. – bdb484 Aug 08 '22 at 20:47
  • @DavidSiegel given that there are a non-zero number of jurisdictions where a person can legally be neither male nor female (ie: legally non-binary or other), how is it question about how the law applies to those people off topic? – Michael Aug 08 '22 at 22:42
  • @Michael the question, as originally written, was about the effect on such laws after "the law is changed to grant LHBTI+ rights" That future aspect, since changed, is what I thought off-topic. A question about how present laws affect gender-nonconforming people is on-topic. – David Siegel Aug 09 '22 at 00:25
  • See https://law.stackexchange.com/questions/49371/legal-aspect-of-male-female-nipples https://law.stackexchange.com/questions/33966/can-women-also-go-shirtless-in-public-legally – David Siegel Aug 09 '22 at 01:49
  • FYI, there have already been cases in various US jurisdictions challenging laws that required women to keep their breasts covered on beaches as being violations of equal protection. In some cases such laws have been struck down, in others upheld. – David Siegel Aug 09 '22 at 01:50
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    In the context of transgender persons: Transgender men will likely not want to show themselves in a way that makes it obvious they once had a female body. So this is very much a question desperately looking for a problem. – gnasher729 Aug 09 '22 at 08:31
  • There was a prominent case like that in Germany a while ago. Specifically, a person identifying as non-binary was evicted from a public pool for not covering their breasts. – Philipp Aug 09 '22 at 15:17
  • @user133469 In both cases, why would a transgender person who has transitioned and wants to be seen by everyone as their real gender want to do that? It's very hard to imagine that a transgender woman walks on a beach, takes her dress, blouse and high heel shoes off, and comes out in speedos instead of a bikini. – gnasher729 Sep 08 '22 at 11:45
  • When you write "a man, who has just started to transition into a female..." Do you mean, "A woman who was assigned male at birth"? And when you write, "a woman, who feels that she is actually a man", do you mean, "A man who was assigned female at birth"? –  Sep 08 '22 at 20:43

2 Answers2

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Your assumption that males can and females can’t is invalid

The law has not been decided.

The law on obscene exposure is found in Section 5 of the Summary Offences Act 1988 (NSW), which states a “person shall not, in or within view of a public place or school, wilfully and obscenely expose his or her person”.

This has so far been interpreted by the courts to mean the male or female genitals - transition status is irrelevant here. It is an open question if it includes buttocks or breasts.

Anecdotally, it is not uncommon for people of all sexes on beaches to expose their breasts, although woman who do so are in the minority.

Discrimination

Assuming exposing the chest is not illegal, any dress code imposed by the owner of a beach or pool to which the public has access, would likely need to be non-discriminatory to comply with State and Federal anti-discrimination law.

I am unaware of any case law on point but analogous situations on school uniforms (which are ubiquitous in Australia) are that it is not discriminatory to have boys and girls uniforms so long as each student can choose which to wear.

Dale M
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  • In the Netherlands there are no specific rules for beaches. Women may expose their breasts if they want to. I don't think anybody will be offended by this. Commercial swimming pools is a different matter. They all have house rules that mandate suitable swimwear (i.e shorts for men and bikini or bathing suit for women). Many of them also state specifically that topless swimming or sunbathing is prohibited (this rule obviously applies to women). – M. Wind Aug 09 '22 at 05:11
  • @M.Wind That would likely fall foul of anti-discrimination law in Australia. – Dale M Sep 08 '22 at 02:09
  • So the everyday reality in Australia is that women can co to commercial swimming pools in order to swim topless. And irrespective of what the house rules are on this matter the women will not be stopped or harassed by the swimming pool staff ? – M. Wind Sep 08 '22 at 03:53
  • @M.Wind no - but the restriction is cultural, not legal. – Dale M Sep 08 '22 at 07:05
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In the US, the question only comes up in Arizona and Louisiana. ARS 13-1402(A) says that "A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether the other person, as a reasonable person, would be offended or alarmed by the act", and LA Rev Stat §14:106 "The crime of obscenity is the intentional: (1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive...".

The size of the breast is thus immaterial. In Arizona, the question is whether the exposure would offend or alarm a reasonable person, and in Louisiana, the question is whether the exposure had the intent of arousing sexual desire, or appealed to prurient interest or is patently offensive. Furthermore, an unsettled question is whether a person legally qualifies as a female. It is, however, correct to conclude that a statutory male can lewdly or patently offensively display his nipple(s) without suffering legal repercussions. In neither state is there a statutory definition of "female" as applicable to criminal law.

Discrimination based on sex is widely prohibited in the US, so there are very few opportunities to discover whether a person's gender self-identification is legally recognized, and from what I can tell, there are no test cases in Arizona or Louisiana whereby one can find out whether those states accept gender self-identification.

user6726
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  • You say that discrimination based on sex is widely prohibited in the US. Does this imply that it is unconstitutional for a commercial swimming pool or holiday resort to have in its House Rules or Dress Code a provision that prohibits women from going topless? And are women really free to expose their breasts, without being hassled? For example at Disney World ? – M. Wind Aug 09 '22 at 16:13
  • The anti-discriminatory laws are not constitutional, they are statutory. Your question was not framed as a question about property rights, it was framed in terms of criminal law ("decency laws"). My answer this addressed the question of decency laws: which in the area asked about, are limited to two states. There is no definite answer to the legal "is a female" question that applies to those laws. – user6726 Aug 09 '22 at 16:42
  • I just googled it. Disney World certainly does not allow women to go topless. I also read that in Florida most hotels have a "No Topless Bathing" sign. – M. Wind Aug 09 '22 at 16:48