Newsflash, it is legal to go topless in New York State. And exercising that right is quickly gaining popularity as a movement. To strip it down to the bare facts,here’s what you need to know: Penal law 245.01, which involves public indecency and exposure, was amended by the NY Supreme Court in 1992, ruling it legal for women to be topless in public under the grounds of gender equality . This law was amended six years after seven women were arrested in Rochester, NY for being topless in a public area and the 1992 case People vs. Ramona Santorelli and Mary Lou Schloss thrust the topless revolution into full-blown action. And yet, over a decade later, in 2005, Jill Coccaro, also known as Phoenix Feeley, was arrested on Delancey Street for leaving her shirt at home. After being detained for twelve hours, she later sued the city and was awarded $29,000 for her unwarranted arrest. Since then, advocacy groups like GoTopless have sprung up, launching Go Topless Day, while the Topfree Equal Rights Association was established in 1997, to aid women unlawfully charged for going topless.
Some see a double standard at work. While a state law limits the ability of women to work topless, there is no similar law regarding shirtless men. One well-known example of the latter is the Naked Cowboy, who appears in nothing but his underwear, hat and boots (and his guitar), and has become as much a part of Times Square as its giant billboards.
Even some social media sites, perhaps the new public sphere, maintain the same distinction; some users of Instagram, for example, have called on the site to drop its restrictions on pictures of women’s nipples.
A 1992 Court of Appeals ruling on the state law said that women could indeed be topless in public, but let stand the prohibition against public female toplessness for commercial purposes. The court also did not settle the issue of whether the law discriminated against women, though some judges believed that it did.
Some legal scholars say that ruling, in a case of seven women who purposely tested a topless ban in a Rochester park, seems to leave a door open for the city to arrest the desnudas for being topless if it could be proven they are engaged in a business. They note the United States Supreme Court has held that limits on nudity at erotic dance clubs are not violations of free speech.
“It sounds like it is commercial,” said Eugene Volokh, a First Amendment expert at U.C.L.A. School of Law. “The city could say if you are naked in a public place for a commercial purpose, we are going to apply the law to you.”
Holly Van Voast, an artist who was arrested in New York several times for going topless and filming the reaction of passers-by, sued the Police Department and obtained a $40,000 settlement. She said the Court of Appeals should revisit the law and finally settle whether the double standard for men and women in New York is discriminatory.
