Gender, Sexuality, and Law:
Lactation Liberation
Harper Jean Tobin
How
would you feel if the woman sitting next to you at Starbucks suddenly opened
her blouse and exposed her breasts to God and everyone? How would you feel if
you were told not to eat in public? Not to feed your child?
Breastfeeding
provides infants with ideal nutrition, fights disease, promotes cognitive
development, reduces distress, facilitates mother-child bonding, and is even
reported to benefit the economy and the environment. A recent statement by the
American Association of Pediatrics touts these benefits, and advises that
"breastfeeding should be continued for at least the first year of life and
beyond for as long as mutually desired by mother and child." But while the
AAP reports that almost two thirds of new mothers attempt to start out
breastfeeding, only 14 percent are still doing so at six months.
One
reason why: although doctors and public health programs urge breastfeeding,
many people just don't want to see it. They may find it inappropriate,
immodest, gross, and even obscene. Many a mother can recount tales of being
asked to do that somewhere else, to go to the bathroom, to cover up – and many
more have forgone breastfeeding in public or at work for fear of such
responses. This mixed social message – being urged to breastfeed, yet censured
for doing so in view of others – carries with it a hint of the outdated view
that good mothers stay at home.
Because
of such concerns, the North Dakota legislature is currently considering a bill
that states simply,
A woman may breastfeed her
child in any location, public or private, where the woman and child are
otherwise authorized to be, irrespective of whether the nipple of the woman's
breast is uncovered during or incidental to the breastfeeding.
Similar
legislation was also recently introduced in Ohio.
Most
states now have some kind of statute addressing public breastfeeding. Some
simply clarify that public indecency statutes do not apply to breastfeeding. In
reality, prosecutions for breastfeeding are unheard of, but such amendments at
least mean that no offended person can tell a breastfeeding mom she’s breaking
the law. Other state laws, like the
North Dakota bill, go farther, providing legal protection from harassment. A
similar federal law applies to federal property. Seventeen states currently
have no laws regarding public breastfeeding, leaving businesses free to
discriminate.
Unfortunately, harassment
in public places is not uncommon even in those states whose laws protect public
breast feeding. A Maryland woman was asked last summer by a Starbucks employee
to stop breastfeeding or leave, even though a 2003 law stated that “a person
may not restrict or limit the right of a mother to breastfeed her child.” Only
after the incensed woman threatened a large “nurse-in” did the company issue an
apology and promise to notify employees of the law.
Another
matter of serious concern for mothers is, of course, employment. A great many
employers do not wish to accommodate breastfeeding on the job, and most states
do not offer protections for breastfeeding employees. Since experts recommend breastfeeding
for a year, two years, or more – and since, obviously, infants need to be fed
several times a day – not being able to breastfeed or pump breast milk at work
represents a serious problem for working mothers and their kids.
Because
it appears that no one actually gets prosecuted for breastfeeding, and because
few mothers go to the trouble of litigating over breastfeeding harassment,
there is relatively little case law on the subject. In other contexts, a number
of courts have ruled that breasts are not “private parts” for the purpose of
public indecency statutes.
A
few breastfeeding plaintiffs have asserted claims under the federal Pregnancy
Discrimination Act, which expands sex discrimination to include discrimination
on the basis of “pregnancy, childbirth, or related medical conditions.”
Breastfeeding was not found to be a “related medical condition,” and these
claims failed. Neither have moms prevailed under the theory of lactation as a
disability under the Americans with Disabilities Act, or that of “sex-plus”
discrimination (that is, discrimination on the basis of sex in combination with
some other characteristic).
Claims
under state sex discrimination laws have been similarly unavailing. These
include a case decided last summer in which a number of mothers sued Wal-Mart
for insisting that they breastfeed in the restroom or leave. There, the Sixth
Circuit ruled that a “sex-plus” discrimination analysis did not apply to
breastfeeding women. The Court reasoned that “plaintiffs cannot make the requisite
showing that they were treated differently from similarly situated members of
the opposite gender” when there are no “similarly situated” men.
The
Fifth Circuit Court of Appeals has twice recognized that breastfeeding involved
a constitutional privacy right, but it and the few other courts citing these
precedents have nevertheless upheld serious restrictions on that right by
public employers and prisons.
Why
all this controversy over breastfeeding? We live in a breast-obsessed society.
Divorced from any notion of their nurturing function, breasts have become for
Americans perhaps the ultimate symbol of our culture’s love-hate obsession with
sex. The titillating display of breasts is a mainstay of our popular media,
fashion, and body modification industries. Nevertheless, we can turn censorious
over trifling displays of skin that wouldn’t raise an eyebrow in many other
societies. The cultural messages that breasts are all about sex, and that sex
is at once desirable and bad, form the basis for the bizarre conclusion that a
mother feeding her child is somehow pornographic.
While
it remains doubtful that we’ll stop being hypocritical about sex anytime soon,
it is possible to be more sanguine about society’s mixed messages on
breastfeeding. Ohio and North Dakota are poised to follow an emerging
legislative trend toward recognizing and protecting the right to breastfeed in
public. Perhaps soon, we’ll be able to
turn our attention to more pressing issues, like outlawing the eating of raw
oysters in public. Now that’s gross.