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INTRODUCTION
The Regulation of Female Breasts in America
Breasts are not genitalia.1 However, when they are displayed in public in the United States, an oversexualized2 patriarchal society,3 they are treated as sexual organs; this is because "many men and women are much more familiar with breasts in a sexual context."4 Female breasts alone are subjugated to this assessment in phallocratic cultures, and the reigning male ego accordingly "makes the male gaze the entitled site of judgment" to the psychological detriment and resulting political oppression of women.5 Considering that "breasts are the most visible sexualized anatomical feature on a woman,"6 it follows that breasts are a woman's primary source of objectification and the most noticeable sign of her femininity.7 "That women live our breasts actively, as sites of desire, sensitivity, and pleasure, is profoundly underthematized in our cultural imaginary. What is thematized instead, obsessively, is the role of breasts in animating male desire."8
Naturally, cultural norms change over time.9 In the sixteenth century, it was fashionable for women, from pauper to royalty, to wear gowns that fully exposed their breasts.10 Today, stemming from America's puritanical roots, even classical high art that features nudity can be deemed offensive.11 America's archaic attitude regarding nudity is not commonplace around the world, and furthermore, America only hypersexualizes female breasts.12
The breasts are made taboo, and like the reproductive organs, are covered, and people are often embarrassed by public exposure of breasts (i.e., public breast-feeding). This view of breasts is unique to U.S. culture and those heavily influenced by the United States. In other cultures, however, it is not unusual to see uncovered breasts (e.g., sunbathing in Europe or simply never covering them, as in some African cultures), and they are not titillating.13
This hypersexualizing creates a stigma for women in America, and American First Amendment jurisprudence reinforces this stigmatization of the female breasts. Occasionally, women go topless in public to bring awareness to specific political issues, including breastfeeding advocates,14 breast cancer survivors,15 sexual assault victims,16 and gender equality activists.17 These topless women activists face harassment, arrests, criminal charges, and possible stigmatization as sex offenders.18 While some states have enacted laws that make exceptions for breastfeeding mothers,19 women still face harsh and biased treatment from the government for being bare-chested, even...