NJ Appeals Court: Legal “Gender” Determines Obscenity

September 16, 2011

Phoenix Feeley

NJ appeals court affirmed yesterday that the government has a “moral” interest in enforcing unequal laws based on sex. In short: Male bodies are fine, Female bodies are obscene and must stay covered. Male chests are respectable, Female chests are pornographic. Male breasts = Moobs. Female breasts = Illegal Dirty Pillows.

Phoenix Feeley, a women’s rights advocate and (literal) fire-breathing performance artist and circus performer lost the appeal yesterday in her ongoing battle against charges incurred in 2008 when she was arrested –twice in one day- for removing her top on the beach like a male.

From the appeal decision:

The facts are essentially uncontested. On June 28, 2008, defendant removed the top of her bathing suit while sitting on the public beach in Spring Lake. Police officer Robert Zoino approached and asked that she put her top back on. When defendant refused, Zoino arrested her and brought her to police headquarters.

 After being processed and supplied with a tee shirt by the police, defendant was released. However, shortly thereafter, Zoino and another officer responded to a call of a topless woman at a street intersection near police headquarters. Defendant was again arrested and issued additional summonses. Police officer Michael Rutka found the tee shirt supplied to defendant hanging from the entrance door of the police department.

 Before the municipal court judge, and again on appeal to the Law Division, defendant did not challenge these proofs.2 Instead, she argued, among other things, that application of the public nudity ordinance under the facts presented violated defendant’s rights to equal protection under the fourteenth Amendment to the United States Constitution. Specifically, defendant contended that men were permitted to appear topless on the public beach, but women were not. Both the municipal court judge, and the Law Division judge, rejected the argument.

In a thorough written opinion, the Law Division judge cited extensively to our decision in State v. Vogt, 341 N.J.Super. 407 (App. Div. 2001). Noting that “defendant . . . [may have] present[ed] compelling policy arguments in her brief,” the judge nonetheless concluded he was “bound by the holding of the appellate court because both the factual circumstances and the regulations in question in Vogt and in this case [we]re indistinguishable.” He found defendant guilty of two ordinance violations, imposed an aggregate fine of $750, and this appeal followed.

Defendant argues that we should depart from continued reliance upon our decision in Vogt because it “unjustifiably sanctions arrest and prosecution based on gender.” The argument lacks sufficient merit to warrant extended discussion in this opinion. R. 2:11-3(e)(2).

The ordinance in this case provided in pertinent part:

[I]t shall be unlawful for any person to appear or travel on any street, avenue or road, beach, waterway, alleyway, driveway or any area of private property open to public view in the Borough or appear in any other such place in the Borough in a state of nudity; in an indecent or lewd dress or garment; or make any indecent exposure of his or her person; or urinate in any of the above described places except in public restrooms.”

She was charged with two counts of Public Nudity, one count of Dressing and Undressing in Public, two counts of Disorderly Conduct (later dismissed) and one count of Obstruction.

According to her blog she was:

Detained for over 6 hours

Sent for psychiatric evaluation

Physically abused by cops

Legal procedures not followed

Patient confidentiality not permitted

Left with no money, phone, or ride 3 towns and a 3 hour walk from where I was.

Feeley has been fighting for years against antiquated sex-based clothing laws that discriminate against women, and has put her safety and freedom on the line to do so. In 2005 she was wrongfully arrested and detained in Manhattan for walking down the street bare-chested, even though New York City had repealed its discriminatory sex-based clothing laws in 1992. She won a $29,000 settlement for that illegal arrest.

“In another country, a woman can’t take a scarf off her face without getting stoned to death,” she says. “What so different about the two?”

From yesterday’s NJ appeals court  decision:

“In Vogt, supra, 341 N.J. Super. at 416-17, we concluded that “there [wa]s no constitutional right for a woman to appear topless on a public beach,” and [r]estrictions on the exposure of the female breast are supported by the important governmental interest in safeguarding the public’s moral sensibilities, and th[e] ordinance [wa]s substantially related to that interest.” Id. at 417. We further noted that distinctions based upon gender must satisfy an “`intermediate’ level of scrutiny,” i.e., “the distinction must be justified by an important governmental interest that is substantially accomplished by the challenged discriminatory means.” Id. at 417-18 (citations omitted). “The burden of justifying the classification is on the state, which must show that the claimed justification is `exceedingly persuasive.'” Id. at 418 (quoting United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 2275, 135 L. Ed. 2d 735, 751 (1996)). We determined that “the ordinance satisfie[d] both the federal and state tests for equal protection.” Id. at 417.

Defendant has presented no principled reason for us to depart from our holding in Vogt. We therefore affirm.”

(All Bolding mine.) In other words, women’s legal rights to equality are based on safeguarding arbitrary cultural sex discrimination traditions. The court’s obligation is to uphold sex-based social customs, even if discriminatory against females.

THIS is why mothers are harassed in public for FEEDING THEIR CHILDREN. And it is why 15 year-old girls want to undergo THIS procedure:

"Top Surgery" for Women

25 Responses to “NJ Appeals Court: Legal “Gender” Determines Obscenity”

  1. The Masked Lily Says:

    Oh, that picture of “top surgery” turns my stomach… Those deflated frankenstein boobs-turned-sewn-on-skinflaps.. how can anyone defend this? It’s depressing that any woman feels the need to have her healthy breasts removed just so she can take off her shirt..

  2. The Masked Lily Says:

    that photo of “top surgery” is so nightmarish.. hollowed out boobs-turned-skinflaps sewn down.. It’s mutilation

  3. Bev Jo Says:

    Yes, but when our natural bodies are so objectified throughout the media, in pornography, and in constant harassment growing up, is wanting to not have that humiliation any longer more strange than having grotesque and toxic implants, which so many women and even girls are now getting? (It’s rarely mentioned but there was some speculation about Amy Winehouse dying partly as a result of implants.)

    I’m not for “top” surgery, of course, but it is more understandable to me than the implants, which are so taken for granted that they are even given to 16 year old girls as birthday presents. I think for some women, they want to return to how they looked before puberty, before they were so harassed and objectified.

    This is how bad it is: our bodies are so presented as grotesque and for male’s pornographic purience that these are the two options many women prefer. And some people say we’re not in a patriarchy? As long as this is happening and increasing numbers of women are choosing to wear high heels that cripple them, (which I’m seeing more and more in the media), things are very bad.

    Thank you so much, Gallus, for this posting.

  4. DaveSquirrel Says:

    Interestingly, the Moob exception is ‘when presenting as a female’. The male model, Andrej Pejic, whilst hailed as androgynous, is usually made up in woman-drag (therefore mistaken to be a woman, even though he himself doesn’t claim to be).

    Earlier this year Barnes & Noble kicked up a stink about this cover of Dossier, and wanted it plastic-wrapped like porn mags:

    Story here:
    http://www.divinecaroline.com/22255/117571-fascinated-androgyny#0

    So it is rather interesting when a male ‘presents’ as a female, then he becomes subject to the laws governing females, the so-called indecency of female breasts.

    The discrimination around breastfeeding in public continues, whilst looking for the UK story of last year of a woman kicked off a bus for breastfeeding, I found another from the US (Michigan of all places).

    http://www.inquisitr.com/122223/breastfeeding-mom-kicked-off-michigan-bus/

    http://www.independent.co.uk/news/uk/home-news/humiliated-mother-forced-off-bus-for-breastfeeding-1910528.html

    It is ridiculous that breastfeeding also comes under ‘indecency’, when 9 times out of 10, nothing can be seen anyway, and it is what female breasts were designed for. In the UK, where the young mother got kicked off the bus, this is the same country that proudly displays soft-core (“lads mags”) magazines in shops of topless women (albeit with ‘stars’ or similar covering the actual nipples). The covers of those magazines are visible to children, and you can see more breast than a woman breastfeeding.

    Basically it is all the double standard of the female breast, being acceptable for the purposes of male titillation, but not for their actual purpose of breastfeeding. It is male law determining the use and purpose of the female breast. I also find it a double standard when young girls are made to wear bikini tops to cover their breast area, when it is exactly the same as boys’.

  5. DaveSquirrel Says:

    GallusMag – just in case WP deems my previous comment spam (because it had 4 links) – it’s not! It is genuine twanzphobic twanzsquirrel !!!

  6. FeistyAmazon Says:

    Yeah Dirt puts this on her blog all the time about the FTM chests and surgeries: “the dirt from dirt”, but hey, I like my breasts to fly free when I feel comfortable, mostly at women’s festivals and Dyke Marches/gatherings. As long as they’re not sexualized, cuz I DO feel we should have just as much right to have our shirts off and NOT be sexualized for doing so, as men do, to keep cool and feel the breeze.

    Last time I was at a local Dyke march in August, after I had been Safety monitor and worked up quite a sweat marching, almost to the point of feeling a bit faint from being overheated, so off went my shirts in that Female environment once we got to the celebration area, just us womyn…till one individual got self conscious and told me to put it back on. I didn’t do it right away, but nobody else had theirs off, so finally I did. Not that cops were around, but I didn’t want to get in trouble should they come around, but women are always guilttripping other women when we behave like free Beings!
    It’s hard to resist that herd mentality!
    -FeistyAmazon

  7. yttik Says:

    “governmental interest in safeguarding the public’s moral sensibilities”

    It’s not moral, it’s not sensible, and the government is completely unqualified to safeguard things like mortality. So many of our legislators are too busy emailing penis photos or toe tapping in the men’s room or exploiting prostitutes to have any idea what morality is.

    That surgery is nightmarish and sad. It is mutilation. But I know the feeling well, the shame they dump on you for having boobs, the blame they put on you for “causing immorality” simply because you possess breasts, the way you feel like a walking target.

  8. GallusMag Says:

    @Dave: “Interestingly, the Moob exception is ‘when presenting as a female’.”

    True. Remember this incident when male transgenders complained that they had a right to expose their breast implants because they were male, and not female? They claimed it was unfair and discriminatory for transgender males with breast implants to be subjected to the same laws as females, but the legal system disagreed:
    http://www.wgmd.com/?p=4780

    • DaveSquirrel Says:

      Actually, you misread that, they were so-called “transgender men” (ie females) intact with their womany breasts. They were trying to access male privilege as born-females, and as we know, whilst the media and law pretend to acknowledge their acquired ‘gender’, in reality, commentary and judgements are made along original sex lines. See Chaz and Dragqueen Arquette.

      • GallusMag Says:

        No, they were males (M2T). I didn’t misread. The officer explicitly states that the persons in question claimed that since they had male anatomy including penis and balls they should be permitted to bare breasts, unlike females.

      • DaveSquirrel Says:

        I re-read it (in the morning, after coffee). It seems some very bad reporting, to call them ‘transgender men’ when they are part-op males (M2T). I thought it was only us radfems that call them male – ie the general term used by tranz and the media is “transgender woman” for M2T.

        Anyway, that is snowflaking again by M2Ts. They want to be regarded as ‘exactly the same’ as FABs, yet still want special treatment and male privileges. Typically tranz, wanting it both ways.

        Did you read the City’s Indecent Exposure Code?
        http://henney.com/weekend01/indecentexposure.htm

        “No female over the age of five years shall wear a topless bathing suit…”

        Five years! They have non-developed breasts just like males of that age. That is blatant sex discrimination without due reason, and obviously society policing females from the age of five.

      • GallusMag Says:

        It’s a sad state of affairs when we consider “accuracy” bad reporting, isn’t it?

      • DaveSquirrel Says:

        Yep. Well, it is getting fucking ridiculous – just like that video you posted on the regretter, the narrator kept switching pronouns depending on his outfit.

  9. AdamR Says:

    Couldn’t agree more. Great post.

  10. FeistyAmazon Says:

    Newsflash here: Just heard on Public Radio that Australia passed a law that there will now be three kinds of gender categories one can fill out in forms: Female, Male, and Indeterminate gender…a bone to the trans movement.

    I didn’t know MTFs were complaining they couldn’t flash their ‘boobs’ and wanted to be able to do so, or be a special exception while bio women cannot, or risk arrest! And that a female cannot breast feed her baby? That’s beyond ridiculous!
    How invaded upon we are in our lives.

  11. sipiy Says:

    This also makes a mockery of the pain and suffering experienced by women who MUST have their breasts removed (and those who probably didn’t have to have them removed but were fearmongered into doing so.). Those women have suffered horribly in a society that blamed them for having diseased breasts, caused them to apologize for being flat chested and wear padding, or risk their lives with carcinogenic implants, and/or more dangerous surgeries, made them run around raising money for the (mostly) male cancer industry researchers who, no surprise, have not found a CURE in 50 year’s of fundraising, and deliver the same SOLUTION now to breast cancer afflicted women, that they did all those years ago and hundreds of million dollars ago.

    AND these trans persons, both FAAB, and MAAB who want breasts either removed or tacked on, take up health care funding time and resources that cannot go to women who may die without timely surgery, and often wait for months, or take less skilled surgeons. Because. There are only so many operating room hours (especially in a universal care system) and too few skilled surgeons, and even fewer who have skill AND conscience.

  12. Bev Jo Says:

    You’re right, sipiy, about the necessary surgeries denied or postponed, as well as other critical health care, while the money and resources go to these cosmetic breast surgeries. Whether removal or implants, both are a travesty. And yes, it trivializes the unwanted surgeries and suffering.

    It is all such a patriarchal mind-fuck.

  13. FCM Says:

    rain posted this at the HUB. its wonderful, a young girl decides that a girls 2-piece bathing suit is too fussy and restricts her freedom of movement, and she goes topless for a whole summer of swim lessons at the pool. everyone assumed she was a boy, but she had a blast.

    • GallusMag Says:

      Except that it was written by a woman named Ivan who had her breasts removed surgically because she hated them so much.

      • FCM Says:

        omg! you and your research.

        heres her website:

        http://www.ivanecoyote.com/

        looks like she identifies as “she” but is involved in genderqueer stuff…are you familiar with her?

      • GallusMag Says:

        Yes. She only recently returned to “reclaim” her “identity” as “she”. Although she is “still trans”.

        http://www.xtra.ca/public/National/Shemanifesto-9087.aspx

      • FCM Says:

        whaa? seriously, how can she be “female gendered” and “female sexed” and still be trans? now they are just making shit up.

        i still liked the vid though. in the beginning her mom tells her she has to “watch that” while wearing a 2-piece because it will ride up if she moves. she decides she isnt interested in “watching. that.” (and not moving, wtf?) and only wears the bottoms. nobody even notices, and she is allowed to move freely and excels at swimming. moving freely, unbound by stupid woman-hating atttire, what a concept!

      • DaveSquirrel Says:

        now they are just making shit up

        LOL, no change really.
        Genderqueer has always been the biggest bullshit going.
        But everyone should take my jendah seriously as a twanzsquirrel.

        😉

  14. Bev Jo Says:

    Yes, I do take you seriously as a twansquirrel, but not those men! Yes, many seem to go back and forth depending on how trendy which identity is at the moment or in which group.

    I still remember being harassed when I was 4 by an older neighbor boy because I had my shirt off in the hot summer and he said, pointing at my chest, “There are dose tings.” (Stupid prick couldn’t speak very well.) I still think that enough of that kind of experience does explain many girls being upset when their breasts grow and harassment increases. But that doesn’t make any male. Unfortunately, the powerful trans movement has convinced too many girls and women that it does.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: