In North America, the question of whether the exposure of the breasts is deemed to cause social harm is an issue that has been tackled by courts, institutions, and the general public. The Supreme Court of Canada (SCC) uses the definition of social harm to decide whether such an act is regarded as inappropriate. Yet the term itself is a subjective one that exists within larger social constructs and essentially helps to reinforce and maintain the power structures of our society. The definition of social harm has been used throughout history to oppress women and reinforce the objectification of their bodies. Female objectification is accompanied by the male gaze, which in effect supports the western notion of ideal femininity. The patriarchal power structures ensure that women remain objects of sexual desire while men are objects of success.
In order for an act to be considered harmful, the Supreme Court of Canada’s (SCC) law requirements state that: “…by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti-social behaviour, or (c) physically or psychologically harming persons involved in the conduct” (80). The SCC has specific categories as to what constitutes as social harm. This definition of social harm is a constructed idea based on Constitutional values. It assumes that so long as the values in the Constitution or ‘similar fundamental laws’ are not violated, then no social harm is caused. Yet, those who have a voice in the political system are the ones who make up such values which are in the Constitution. These voices form values which protect themselves. Hence, ‘social harm’ refers to dangers that threaten the powerful and the ‘elite’; yet ones that threaten the minority are not considered as harm since their voices are marginalized in the Constitution.
Not only does the SCC’s definition of social harm support those in power, but it is also open to interpretation. The categories used to assess whether an act causes harm must be applied “objectively” and on the basis of evidence. The SCC judges must decide whether the risk of harm is of a degree that is incompatible with the proper functioning of society. Furthermore, the interpretation of social harm assumes a liberal perspective. Liberalism affirms that “the state and law should strive to provide the citizen with as much space as possible to pursue her own self interests and that each person should have the equal right to do so” (Devlin 8). The requirement further uses “”the harm principle”: one cannot use one’s own liberty to infringe on that of another” (Devlin 8). The authority to decide whether one’s right infringes on another is up to the powerful members of society. Such powerful members include white mainstream male judges who make the final decisions about whether an act constitutes as social harm. Therefore, the Supreme Court of Canada’s law requirements for social harm have a major flaw; that is the underestimated limitation of applying objectivity to what is compatible or incompatible with the proper functioning of society. This is a major limitation due to the fact that discrimination and internalized dominance in the legal profession limits the elite white male judges to their own ideologies and traditional perspectives. Shelina Neallani, author of the article, “Women of Colour in the Legal Profession: Facing the Familiar Barriers of Race and Sex”, argues that internalized dominance plays a powerful role in the systemic discrimination. This is how powerful members of society participate and contribute to the oppression of others. Nealli posits that everyone in society receives positive messages about mainstream white males and negative messages about other people targeted in society based on their age, sexual orientation, colour, race, gender, et cetera. As such, these messages are internalized by everyone. Both men and women learn that women are ‘inferior’ to men. These prejudices include seeing women as sexual objects and at the same time needing to protect them. The SCC’s definition of social harm lacks in legal realism as it overlooks the idea that judges have prejudices, economic preferences, political sympathies, et cetera. Judges have their own pre-conceived notions of a woman’s worth. As such, Neallani argues that internalized dominance is so ingrained that they do not even realize the beliefs, attitudes, and feelings they have towards these oppressed groups.
Only until recently, year 1996, female toplessness was illegal in Canada. Throughout the rest of North America laws are still in place to ensure women cover their breasts and continue to be objectified in order for the power to remain in the hands of the elite. Covering the chest leads to objectification of the breast. As Luke Boso of the article “A (Trans)Gender-Inclusive Equal Protection Analysis of Public Female Toplessness” explains, they are exposed only in the presence of the male gaze and covered up in non-arousing settings. Boso goes further by amplifying that currently the female breast is only exposed where men desire it: in highly erotic places such as strip bars, pornography, and the bedroom. “Society, therefore, has carved out an exception to the general nonacceptance of female breast exposure: exposure to entertain or sexually arouse males” (Boso 5-6). Boso argues that women’s bodies are objects of the male gaze, under which breasts are defined primarily as objects of male interest and sexual pleasure. The authors of “Being Large-Breasted”, Richard Millsted and Hannah Frith explain, “[t]his phallocentric construction depicts breasts as decorative rather than functional, as existing to be looked at, and as a series of body parts to be consumed by male viewers. Women’s breasts are objectified, fetishised and commodified” (2). Breasts are rarely seen as belonging to the woman herself. By not accepting the exposure of breasts in public settings, free of the male gaze, they remain the property of men and in turn, remain objectified.
Objectification of women takes power away from them because it reinforces the western notion of femininity. This notion of femininity is one that caters towards men—pretty looking objects of the background. Breasts add to the objectification of women and are therefore a symbol of femininity. The authors of “Being Large-Breasted”, Millsted and Frith state it perfectly: “[b]reasts are seen simultaneously as a marker of womanhood, as a visual signifier of female sexualisation, as synonymous with femininity” (1). The breasts are an extension of this feminine notion because they too are catered towards men—they are for his pleasure, his exploration, and his fun. The fact that breasts are objectified and are a symbol of femininity is disparaging because in our society masculinity takes precedence over femininity. Femininity is associated with the less favourable binaries, as rated by our society, such as irrationality, emotionality, passivity, subjectivity, et cetera. Meanwhile, when women are thought of and treated as mere bodies—when they are objectified—they are further discouraged from being rational, active, and intellectual human beings like men are encouraged to be. In our society, we value masculine traits and therefore women are put at a disadvantage when they associate with femininity.
My argument that women are encouraged to possess less favourable binaries coincides with the feminist strategies that reject sexualisation and conclude that the differences between men and women exist due to socialization. As Harriet Taylor Mill argues, in Frances Olsen’s article “The Sex of Law”, women are passive, irrational, and emotional not by nature, but by nurture. She argues that “the qualities which are not permitted to be exercised shall not exist” (79). Olsen paraphrases, saying that “[t]o deny women the opportunity to develop to their fullest potential is an effective way to prevent them from being rational, active and so forth” (79). Laura Mulvey argues in her book “Visual and Other Pleasures”, that the male role of looking and the female role of being looked at reinforce the man as an active creature and the woman as passive. Here the argument comes in. Are men biologically programmed to posses masculine traits while women are naturally born with feminine traits, and thus our society favours masculinity over femininity? Or do men and women have the same qualities by nature, yet we try to keep women irrational, emotional, et cetera, so that they have less power? I have clearly demonstrated that the latter view has credence. The female association with feminine traits is a social construction and is partially maintained by the fact that they are admired more for their bodies than their minds. Objectification helps to uphold this structure.
Such power structures were created in order to maintain the nuclear family. With the head of the household working, and the woman providing free labour by cooking, cleaning, and raising the children, more profits are left for the people at the top. This system feeds and sustains capitalism. Artifactualism argues that law is perceived as an instrument of the powerful elites of modern society, which reflects and supports their interests to a significant degree. I argue that this theory brings to light the idea that keeping women as objects and no good for the workforce is motivated by the elite’s desire to uphold status quo. This idea corresponds with Artifactualism’s standpoint that laws are constructed to maintain societal stratification in order for the elite’s power to get passed down from generation to generation.
Some indication from history of when the law was interpreted in a way that helped to maintain the power structures of society was during the eighteenth century. The rule of law was written during this time, yet women were exempt from voting in provincial elections all the way up until the early twentieth century. This was not the result of inequality within the law, but rather the interpretation of the law. At that time, ‘persons’ were all deemed equal, yet women were not granted the title of ‘persons’ and therefore the law was not applicable to them. Women were not given voting rights because they were seen as equivalent to irrational children. Although women are now legally considered people under the law, in the social framework they are not fully valued as such because femininity is associated with ‘irrationality’ yet the definition of liberalism includes ‘rational’ persons. “Liberal political theory has as its starting point an ontology — a theory of being or personhood — that assumes a rational, free-choosing, autonomous self…” (Devlin 8). This ontology is based on the idea that a “person” is a “rational” self. If women are not rational, then they are not fully ‘persons’ and should be treated more like children. The definition of liberalism—rationality—and the binaries associated with feminism—irrationality—are constructed in a way that discriminates against women. However, this is now less obvious since women are included in the rule of law. Women are seen as irrational creatures and therefore society justifies telling them whether they should cover up their breasts and when they should do so.
Women have limited choice not only in regards to the exposure of their breasts, but also to any other physical aspect that connects them with femininity. Naomi Wolf in “The Beauty Myth: How Images of Beauty are Used Against Women”, suggests that conformity to patriarchal standards for beauty indicates a lack of agency for women, “The real issue has nothing to do with whether women wear make-up or don’t, gain weight or lose it, have surgery or shun it, dress up or down, make our clothing and faces and bodies into works of art or ignore adornment altogether. The real problem is our lack of choice”. This lack of choice keeps women in their ‘place’ and ensures that they maintain their femininity. By maintaining their femininity, they are kept irrational, passive, and emotional, and in turn, given less power.
Women have strict standards when it comes to any feminine masquerade, from high heels, to long curled hair, to large breasts. Catherine Egley Waggoner, the author of “The Emancipatory Potential of Feminine Masquerade in Mary Kay Cosmetics”, explains that these standards for beauty oppress women, “these standards for beauty become a tyrannizing force in women’s lives, encouraging women to define themselves primarily in accordance with patriarchal standards for beauty that claims to celebrate womanliness but actually serves to control women.” Waggoner’s ideas coincide with my argument that women are objectified and judged based on their physical appeal in order to be associated with femininity which essentially oppresses them. This was more obvious after the two world wars when it was necessary for women to work. Even then, it was made certain that women maintained their femininity even though they were getting into the workforce. Wolfe writes, “[a] Pond’s cold cream ad of the time read: ‘We like to feel we look feminine even though we are doing a man- sized job…so we tuck flowers and ribbons in our hair and try to keep our faces looking pretty as you please.’ A cosmetics ad ‘admitted that while the war could not be won by lipstick, it symbolized one of the reasons why we are fighting…the precious right of women to be feminine and lovely.’ The propaganda in women’s magazines of that day emphasized that it was okay to work in the factory, live on your own and earn your own salary, so long as you stayed feminine” (29). In fact, the law allowed women to be hired or fired on the basis of her physical appearance. A woman’s beauty, or lack of it, could have been legally used against her. In one law case, in 1986, a woman lost a sexual harassment claim because she dressed ‘too beautifully.’ In another case, a woman was denied partnership in a top ten accounting firm ‘because she needed to learn to walk, talk, and dress more femininely’. In another case, the judge ruled that the woman rightfully lost her job because it was ‘inappropriate for a supervisor of women to dress like a woman’. Back then, the definition of ‘social harm’ was just as subjective in court cases as it presently remains. It was used to oppress women and was justifying by the significance of their physical appearance.
Throughout history there have been examples of social standards which kept women from progressing into intellectual beings simply due to their gender. Such standards were maintained to ensure the power hierarchies between women and men were not threatened. For example, a century ago, normal female activity, especially the kind that would lead women into power, was classified as ugly and sick. If a woman read too much, her uterus would ‘atrophy’ and if she kept on reading, her reproductive system would collapse. Wolf demonstrates that “[p]articipation in modernity, education and employment was portrayed as making Victorian women ill…Victorians protested women’s higher education by fervidly imagining the damage it would do to their reproductive organs…and it was taken for granted that ‘the education of women would sterilize them’ and make them sexually unattractive: ‘When a women displays scientific interest, then there is something out of order in her sexuality’”(23). Wolf argues that it is apparent that the attitudes toward women were that they were useless beyond their ability to conceive. Any effort to expand their usefulness was attacked as though it was a threat to this reality. This is not much different today as John Berger highlights in his book “Ways of Seeing”, that women have internalized their positions as passive objects of the male gaze in the patriarchal system. He describes that a woman has to judge herself from a bird’s eye view perspective in regards to everything she is and everything she does because that is how she appears to men, which is her most important success in life. Berger emphasises, “…[m]en act and women appear. Men look at women. Women watch themselves being looked at… Thus she turns herself into an object of vision: a sight” (46-47).
Marginalization of groups of people has been witnessed all through history with the use of ideologies as justifications for such doings. For example, slavery was justified by the idea that the elite white class was protecting black people from themselves by “taming” them. Today, the ideologies used to justify the need to cover the breast in public are that children need to be protected from such indecency and that women need to be protected from vicious sexual predators. Protecting the child from sexual behaviour or such topics of conversation is a common practise in the West. In fact, it is so common that it is not regularly questioned. Power is most powerful when it is invisible. The idea that we need to protect the innocent child from the exposure of the bare breast is common sense and therefore this ideology remains very powerful. Protecting the child from such exposure reinforces that the breast is too dirty for the child to see because its indecency can corrupt the child’s innocence. This ideology rejects the fact that the breast is just another part of the woman’s body that has other functions besides being a sexual entertainment piece for men. Additionally, having the need to protect women from sexual predators reinforces that they are fragile beings who are incapable of making their own decisions and therefore need to be told what to do. Such justifications are within the discourse and serve as a self-fulfilling prophecy.
The power structures in our society are such that women are rated lower on the hierarchy due to their association with femininity. The patriarchal system ensures that women remain feminine by setting standards that lead to objectification of their bodies. These standards maintain their place because of the dominant’s group power to interpret the notion of social harm and the law. If the court’s notion of social harm is premised on patriarchal values of dominant masculinity and femininity, what does that mean for women and their control over their own bodies? What are the implications of women revealing their breast to feed in public? Who gets to decide that breast are working breasts and are also for the woman’s pleasure? Breasts should not belong to men because they are part of the woman’s body. The male gaze and objectification is upheld by power patriarchy that keeps this gender in its place. Can women resist these patriarchal power structures? They themselves are trapped in the system. Men are not the ones holding all the strings as it is not a game of male versus female. Women themselves are taught to believe that they are in fact inferior to men due to their irrational and emotional qualities, and yet they continue to act and look feminine due to the pressures of society. Although femininity is linked to binaries which are rated lower on the hierarchy than masculine binaries, rebelling against them—not being feminine enough—can cause rejection from society. This discourse is so powerful because femininity is made out to only be glamorous. The day the female comes out of a mother’s womb, she is already bombarded with messages that she needs to aspire to be feminine like her mother and her Barbie doll role models. Such power remains invisible because although women are put at a disadvantage by it, they themselves are taught to aspire towards it. If it was obvious and clear that being feminine is secondary to being masculine and that it only brings disadvantages, women would not have the incentive to aspire to it. Therefore for the patriarchal power structure to work, it has to first appeal to women.
Work Cited:
Berger, John. Ways of Seeing. New York: Penguin, 1972.
Boso, Luke A. “A (Trans)Gender Inclusive Equal Protection Analysis of Public Female Toplessness.” Tulane Journal of Law & Sexuality (2009): 6-7.
Devlin, Richard F. “Mapping Legal Theory.” All Canadian Legal Journals (1994): 5-6.
Frith, Hannah, and Richard Millsted. “Being Large-Breasted: Women Negotiating Embodiment.” Women’s Studies International Forum 26.5 (2003): 455-65.
Mulvey, Laura. Visual and Other Pleasures. Bloomington: Indiana UP, 1989.
Neallani, Shelina. “Women of Colour in the Legal Profession: Facing the Familiar Barriers of Race and Sex.” Commentaries 5 (1990): 154-56.
Olsen, Frances. “The Sex of Law.” The Politics of Law: A Progressive Critique (1990): 77-84.
R. V. Labaye. 80 SCC. Supreme Court of Canada. 18 Apr. 2005.
Waggoner, Catherine Egley. “The Emancipatory Potential of Feminine Masquerade in Mary Kay Cosmetics.” Text and Performance Quarterly 17.3 (1997): 256-72.
Wolf, Naomi. The Beauty Myth: How Images of Beauty Are Used against Women. New York: W. Morrow, 1991.