Toplessness laws: Still around, still unjust — and getting complicated

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In July 2021, Eloisa Plancarte was in the parking lot of a Rochester convenience store with her breasts fully exposed. Police were called and arrested Plancarte. They took her to jail, where they found cocaine in her purse. Last week, Plancarte lost her appeals case; for the indecent exposure charge, she will serve 90 days in prison. For the possession of cocaine, she was given a stay of adjudication.

Note that it was not what Plancarte said, nor how loudly she said it, nor even the fact that she was in possession of cocaine that she will serve time for — it was because she had her shirt off and she was a woman. If a man were topless in a parking lot, he would not have been sentenced to prison — it is unlikely the police would have even been called. This outcome is unfair to women, and the law banning female toplessness in Minnesota is sexist, transphobic and vague.

You might think that the differing legal status of male and female breasts stem from qualitative differences in breast tissues. You would be wrong. All humans are born with milk ducts — it is hormones that alter the fattiness of the tissue and the capacity to breastfeed, as evidenced by the fact that trans women can successfully breastfeed.

If the makeup of the breast tissue isn’t fundamentally different, what drives the differing laws around male and female breasts? Culture. Women have had more restrictions placed on their bodies than men for all of American history. Only in 2018 did it become legal for women to breastfeed in public in all 50 states. In 2022, the Dobbs ruling took away a woman’s federally guaranteed right to an abortion, overturning a 49-year-old precedent. In the last 10 years, people have become obsessed with where transgender women go to the bathroom. Sadly, the ruling against Plancarte follows this pattern.

Trans and intersex people might have breast shapes that do not correspond to their perceived gender. Under Minnesota’s law banning female toplessness, transgender men could be arrested for toplessness, creating not only a criminal history for the offender, but also the pain of being seen for something they are not. Cisgender people have widely differing breast sizes, from men with gynecomastia to women with small breasts.

In 2020, I was cited for toplessness while reading a book on a Minneapolis beach. As I argued afterward in an Opinion Exchange article, if the size of the breast is not a criterion for a toplessness citation, what is? Two answers: The person’s assumed gender and their behavior. Two of the three appellate court judges hearing Plancarte’s case voiced concern that the gender profiling inherent in Minnesota’s female toplessness law could be harmful for trans people.

As for behavior, the law states that “lewd” female toplessness is not allowed. The definition of lewd is “crude or offensive in a sexual way.” Nothing is sexual about being in a convenience store parking lot — unless you think it’s sexual because Plancarte was topless. But that’s circular logic: We believe women act sexually because our culture sexualizes women. Furthermore, defining something as lewd is subjective and vague. My impression from the report is that, sober or not, Plancarte was simply being obnoxious. Of note, in Minneapolis in the summer, I see many topless men being similarly annoying in public. They are largely ignored, or, if they do interact with the police, they are not sentenced to three months in prison.

After I was cited for toplessness, my friends and I lobbied the Minneapolis Park and Recreation Board to repeal its outdated ordinance banning female toplessness and won. Since then, there has been no sea change, no scandal in Minneapolis parks, and the difference at local beaches is barely perceptible. What is different, however, is that strained police resources are no longer being directed toward a nonissue, and that people of all genders in Minneapolis don’t have to worry about getting tickets, paying fines or going to jail simply because they are not cisgender men. I call on the Minnesota Legislature to legalize toplessness for all genders at the state level. With 33 states already having adopted such laws, it is beyond time.

Paula Chesley lives in Minneapolis.