City won’t intervene in topless complaints
July 19, 1991 was an exceptionally hot day in southern Ontario, reaching 33 degrees Celsius. On that day, the Guelph Police Service received a complaint from a woman who was upset that she and one of her children had seen a topless woman on a Guelph street. Gwen Jacob, a 19-year old part-time student at the University of Guelph, had removed her top in order to help cool down, an idea that she said came to her when she saw a group of shirtless men playing sports. She was arrested and charged with indecency under Section 173(1) (a) of the Criminal Code.
While she argued in court that breasts were merely fatty tissue and that there was a gender-based double standard at play, she was found guilty of one count of committing an indecent act and fined $75. The judge stated that breasts were “part of the female body that is sexually stimulating to men both by sight and touch” and should not be uncovered in public. Jacob appealed, but her appeal was dismissed by the Ontario Court.
She then appealed to the Ontario Court of Appeal in 1996 and won. The court wrote that “There was nothing degrading or dehumanizing in what the appellant did. No one who was offended was forced to continue looking at her,” and that the act had not exceeded the community standard of tolerance.
As a result, Jacob opened the door for women in Ontario to legally expose their breasts in public for any non-commercial purpose. On the day of her victory, she said that it was important to “reclaim control over the images of our bodies” and that the ruling “helps us affirm our right to define the context in which we choose to be seen as sexual.”
I share this not just because we are thick into the dog days of summer, but because of a recent situation in the City of Cornwall. Two weeks ago, a complaint was filed with the Human Rights Tribunal of Ontario against that city and others claiming discrimination against women for a 1990’s city policy that requires women and girls over the age of 10 to wear tops while using the municipal aquatic centre, outdoor pools or parks.
The policy reads, “Topless policy: females 10 years of age or older are required to wear tops. Violators will be asked to leave.”
This issue is emotionally charged for many, involving questions of propriety, morality, religion, sexuality, child protection, cultural norms, freedom of expression, human rights, civil rights, gender parity and the sexualization of women’s bodies. In the complex ebb and flow of individual and community values, rights and freedoms, our culture has followed a decidedly liberalizing course from which there is likely no return.
How does this affect Peterborough? The city has no formal written policy on the matter. However, city staff advise that, in the event of the presence of a topless adult woman at a city pool or park, they will not intervene. If city staff receive a complaint, they will suggest that the complainant share their discomfort with the topless patron or they will advise the patron of the complaint, but will take no action to alter the behaviour. By any modern measure, that is an enlightened position that will please some but offend others.
There is an old saw that says that Americans have the right to bear arms and Canadians have the right to bare breasts. Peterborough would do well to formalize its current practice on toplessness in order to bear witness to the common sense that it represents.