It’s a scorching hot summer’s day. You’re walking home from school and see a group of men playing soccer, shirtless on the grass. Then it occurs to you how wonderful it would feel to pull off your sweaty t-shirt and revel in the freedom of feeling the cool breeze against your chest. But you can’t because you’re a woman and this is Canada. There are laws about these things.
Or are there?
Twenty years ago, Gwen Jacob began history in the making when she was arrested on a hot summer day. The then-19-year-old was walking home from her university in Guelph, Ont. without a shirt on. After being charged for indecency, she was later acquitted in 1996. Deeming her exposed upper body not indecent under the circumstances, the judge dropped the charges.
“I personally won it (the court battle) on the day I took my shirt off,” Jacob said. “The five years of the court, that was doing it for other women to not have the legal harassment that I experienced.”
This incident seemed to give a second wind to the topfree movement in North America, giving women the freedom of choice. However, seeing a woman topfree in public is an anomaly. Experts have their thoughts on this ranging from murky laws to societal stigmas.
Paul Rapoport, Topfree Equal Rights Association’s (TERA) co-director and member of the Society for the Scientific Study of Sexuality, says laws are not always as straightforward as people would like them to be.
“The way it works is this. If a case like this did come up, the Jacob case would be persuasive and hold precedence in other provinces,” he said. “So, is this legal in Canada? The answer is probably.”
Alan N. Young is a professor at Osgoode Hall Law School in Toronto. He says there is a reason for the uncertainty.
“It’s a bit of a trap,” he said. “People think there’s a topfree right because of the (Jacob) case. There’s no such thing”
According to Young, there is no law that clearly defines a woman’s right to be topfree.
“When Gwen Jacob was acquitted for going topless in Guelph, if you read the judgment carefully, they just decided on the facts of that case, period,” he said. “They were not saying there was a general right to go topless in this country.”
This means if a woman was charged with indecency for being topfree, she may be cleared through case law. However, according to Young, the more similar the case to that of Jacob’s, the more weight case law would hold.
“If you’re not making a spectacle of yourself and you’re not disturbing people in the community and the weather is hot, it looks like you can go topless in Canada,” he said. “Other than that, it looks like you’re running the possibility of being charged.”
According to Young, decency laws are “very malleable standards” and the courts must determine whether or not the activity will interfere with the proper functioning of society.
“The act I was committing was walking,” Jacob said. “Walking is not an indecent act and being unclothed is not an indecent act. I wasn’t doing something sexual, lewd or lascivious when I was arrested.”
Judy Williams has been a naturist (often referred to as nudism) her whole life. She is also the public relations and government affairs representative for the Federation of Canadian Naturists and co-director of TERA, alongside Rapoport. She says there is nothing offensive about the topfree body.
“Women should know they have that right to refuse to put their top on,” she said. “There’s no sexual stimulation or thought; it’s just to be able to be free.”
Williams believes the interpretation of the naked body is in the eye of the beholder, not the person who is naked, which is why society needs to become more accepting of the topfree movement.
“It’s not right to inflict and to say that societal standards, or levels of decency, are offended by the topfree body,” she said.
Williams also believes that women choose not to be topfree because they battle certain societal stigmas.
“Their most severe critics are other women,” she said. “I think it’s a comparison thing.”
Williams says women not only compare themselves to their counterparts, but fear other women are comparing them as well.
According to Rapoport another stigma women face are people concluding things about them that are not true.
“They read into that situation where a woman may be without a top that very narrowly and based only on their own imaginings and fears,” he said. “The woman who is topfree, whether she is in her backyard or sitting in a park or walking down the street, is not behaving in the way that this negative observer assumes she is.”
Rapoport says there is a need to educate people on what many women want, which is not to cause unrest and public disorder when topfree.
“The (public’s) assumption is that women undertaking in being topfree are doing something to disturb people, to offend them deliberately or to behave sexually,” he said.
Williams says the breast, being a mammary gland, is something from nature and not something to attach a sexual connotation to.
Jacob says at her ruling it was stated that women are allowed to appear topfree in the same public arenas where they’re accustom to seeing men. However, society still has a hard time seeing breasts as natural and inoffensive.
“Our bodies have been objectified for so long that it’s difficult to separate nudity from sexuality,” she said. “So, if you take your shirt off, that’s just considered over the top.”
Jacob assigns part of the blame to early conditioning. She uses the example of female toddler bathing suits. They always come with a top piece used to cover the nipples.
“There’s no physiological difference between a baby girl and a baby boy in the chest, yet we cover the nipples (on girls),” she said. “It makes it very difficult for girls and women to be comfortable with their bodies.”
“Women are told to cover their breasts. Then that implies from a very young age, for most girls, that there is something wrong with their upper bodies that is not wrong with boys,” he said.
The topfree movement still has its uphill battles. With a spirit like Jacob behind it, it won’t go down without a fight.
“You want to take your shirt off? Go for it!” she said. “If they give you a hard time, call me. I’ll set them straight.”