Minnesota legislator proposes making it legal for women to go topless

When Minnesota House Rep. Samantha Sencer-Mura heard that a woman was sentenced to 90 days in jail for going topless in public, she felt inspired to propose amending the state’s law so exposed breasts cannot be considered indecent exposure.

“That to me just seems really wrong,” Sencer-Mura said of the 90-day conviction. “Particularly now, as we as a society are thinking differently about gender and gender identity, I think this law feels very antiquated.”

Sencer-Mura, a Democrat from Minneapolis, says her proposal is not likely to get a hearing this year at the Capitol. But she hopes it will start a broader conversation about what’s allowed as society’s understanding of gender identity shifts and hopes it could get a hearing at a future session.

She noted that the conversation about legalizing exposed breasts was reinvigorated following a Star Tribune article about Eloisa Plancarte, who was sentenced to 90 days in jail after she was arrested by Rochester police in 2021 for walking around a convenience store parking lot with her breasts exposed.

Plancarte appealed, arguing it violates her constitutional right to equal protection because men are not charged if their chests are exposed. The Minnesota Court of Appeals in February voted 2-1 to uphold her conviction. Two male judges voted to uphold the conviction; the dissenting judge was a woman.

As it stands, Minnesota laws are vague about what counts as indecent exposure. It’s defined as when someone “willfully and lewdly exposes the person’s body, or the private parts thereof.” But the statute never specifies what counts as private parts. It provides an exception to mothers who are breastfeeding.

In the decision to deny Plancarte, Judge Kevin G. Ross referenced a nearly 40-year-old Court of Appeals decision which upheld a conviction for a woman who sunbathed topless in a Minneapolis park.

He said that 1986 decision has withstood the test of time and led to the majority of courts upholding that indecent exposure applies to women but not men for exposing their chests.

Judge Diane B. Bratvold, in her dissent, wrote that the decision “raises more questions about criminal conduct than it clarifies.”

Bratvold brought up various situations not addressed in the Plancarte ruling, such as whether it’s a violation for a transgender man who has not surgically removed his breasts to expose them in public. Although Judge Jon Schmidt voted to uphold the conviction, he raised similar concerns to Bratvold, saying he thinks the state’s law could be improperly used to attack transgender people for behavior that wasn’t lewd.

Sencer-Mura, who co-authored the measure with Rep. Brion Curran, DFL-Vadnais Heights, added that current law allows for too many assumptions by officers about someone’s gender identity.

“If law enforcement believes that someone identifies as a female, then they’re going to treat them differently if they have their shirt off than they would someone that they perceive to be a male,” Sencer-Mura said. “As we have a shifting understanding of gender, that law just doesn’t make sense anymore.”