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9/16/2004

News > News

BUSTING THE BOOB BAN

 

Athela "Beaner" Frandsen is like many 15-year-old girls – she loves science, computer games and her pet rat, Luna. But just beneath the surface of the quiet-voiced, well-mannered Melbourne teenager exists a passionate women's rights activist who has been battling the court system since the age of 9.

Her struggle began a few weeks before her 10th birthday, when Athela got bad news from her mother, Jan.

"When I was playing at the park as a young girl, I would get hot, so I would just take my shirt off like the other boys my age did to cool down," says Athela. "But one day, my mother informed me that once I turned 10, I would no longer be able to take my shirt off to cool down because the law doesn't allow girls over the age of 10 to do so. I didn't think this was very fair."

Her parents, Melbourne naturists Jan and Marvin Frandsen, agreed.

"It broke my heart to have to explain to her that she was considered different than the boys her age," says Jan. "I didn't want to tell her because she was just about to turn 10, and that's an age when a lot of little girls have a drop in self-esteem."

Frustrated, Jan says she began calling old friends to see if they were interested in joining a lawsuit against Brevard County. Eight other women, ages 38 to 75, said yes, including a school teacher, a co-founder of a Fort Pierce nudist community and an ex-NASA worker who pled guilty to sprinkling white powder in an envelope with her water bill during the nation's anthrax scare. Together, the women have been nicknamed the Topfree 10.

"I just began calling anyone I could think of to see if they'd be interested in coming together to fight the law," says Jan, "Two of the women I knew from church, and the rest were from different walks of life."

Once she garnered support for their cause, Jan approached married Merritt Island attorneys Mark and Lisa Tietig. Mark Tietig emphasizes that the case has less to do with a women wanting to go topless, and more to do with equal rights.

"This case is about changing a law that actually criminalizes and punishes women for doing something men can do," says Mark Tietig. "It's essentially one of the last laws on the books that works that way."

In their lawsuit, initially filed in 1998, the women sued Brevard County for the right to take off their tops "during their work, beach going, gardening, sunbathing, swimming, other outdoor activities, and in other nonsexual contexts as often as their husbands, sons, fathers and other men."

Their case was immediately dismissed twice in the lower-level Brevard courts. "These judges just dismissed our case without hearing a shred of evidence," says Jan, "so we decided to take our case to federal court."

On Sept. 3, 2003, the women filed their lawsuit in U.S. District Court in Orlando.

Jan says her reasons for starting the lawsuit are rooted in society's negative attitude toward female breasts – an attitude, she says, that put her daughter's health in danger.

"When my daughter was a baby I had trouble breastfeeding. It was further complicated by our culture's constant disdain for the breastfeeding mother.... As a result, my daughter ended up with severe health and allergy problems associated with the lack of breastfeeding," says Frandsen. "My daughter's health problems continued for over 10 years. Because of this situation, I became extremely sensitive to the inequality and prejudice against women for being born women."

Frandsen thinks the ordinance causes women to be discriminated against from birth.

"Basically this type of law labels a woman as being genetically inferior," she says. "The law then becomes government-sponsored discrimination ... . Once you place a woman in an inferior position automatically from birth, it becomes a small step to other unequal treatment."

Despite some of the negative publicity the lawsuit has received, Athela says her friends and other kids at school have been supportive.

"Most of them were curious at first, and a little surprised, but once we talked to them and explained what we were doing, they were pretty positive about it," she says.

In the lawsuit, the Topfree 10 points out that the only legal means to expose female breasts is for the gratification of others, not for a woman's comfort.

"Only by baring breasts in a commercially sexual context; e.g., for strip-show spectators, commercial marketers, or others with interests apparently deemed more compelling and/or immediate than the woman's own interests, heath, or comfort; may women legally bare their breasts in public at times other than those when their breasts are allowed to be exposed for breastfeeding children."

Jan says people who view breasts in an uncomfortable manner because of their sexual connotation need to "grow up."

"It's ridiculous to define women by their gender. It's like saying that black people by their color or Indian people by their heritage are dangerous [and should be criminalized]," says Jan, "when they should be judging people by who they are and what they do."

Not all members of the Topfree 10 actually want to be "top free." Marilyn "Smitty" Hooper is a 74-year-old grandmother of five. Hooper says she's too old to take her top off, yet remains passionately dedicated to equal opportunities for women. Hooper has a diverse history of activism – she's escorted women into abortion clinics, lobbied for the homeless and protested against nuclear weapons.

"Judges equate female breasts with sex organs, and they're not," Hooper told the Orlando Sentinel. "They're glands, and the judges have them, too."

Topfree member Shirley Mason thinks this lawsuit isn't about exposing breasts; it's about exposing discriminatory laws. She's the founding creator of the clothing-optional section of Haulover Beach in Miami, and the executive director and secretary of B.E.A.C.H.E.S. Foundation Institute.

"If it's not the color of skin, the age of skin, the covering and uncovering of skin, then it's the gender of the person's skin that people find a reason for irrational prejudice and discrimination," says Mason. "If the publicity that this lawsuit generates can make people think and question these discriminatory laws, a successful court decision will ensue, and another milestone for women...."

Norma Mitchell, a Topfree member and a real estate business professional in Broward County, agrees. "Winning this case will not only liberate women throughout Florida, it will go a long way in liberating the entire country from these unjust laws that specifically discriminate against women. The goal is needed and the cause is noble," she says.

Mitchell says breasts shouldn't be viewed as "harmful, immoral, dangerous, lewd or frightening," and that people who feel that way about their breasts (men or women) retain their right to keep them covered.

"As a child, I wore dresses to school. There was no choice about it. The boys could hang upside down on the monkey bars and kick their legs over their heads if they wanted. They wore pants and I envied them," says Mitchell. "Girls today can wear whatever boys can wear. However, females are forced by law to wear something that males are not forced to wear: a shirt in public."

Dr. Terri Fine, an associate professor for the University of Central Florida who studies women and politics, says that although the Topfree 10 have a strong argument, the public interest argument is even stronger.

"They're basing their case on a 14th Amendment equal protection argument. But public rights are always balanced with public interests," says Fine.

Asked if the Topfree 10 would win in court, Fine replied, "No. They will not win because there are so many ways to articulate what the public interest is for this particular case."

Fine isn't the only expert who thinks the Topfree 10's chances of a victory are slim. Fletcher Baldwin, a law professor at the University of Florida, compared the woman's chance in court to that of a snowball's in hell, according to an Orlando Sentinel report.

Defining an illegally "nude" breast is simple, according to Section 4(b)(3) of Brevard County ordinance 95-21: "The portion of the human female breast directly or laterally below a point immediately above the top of the areola with less than a fully opaque covering. This definition shall include the entire lower portion of the human female breast, including the areola and nipple, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other clothing, provided the areola is not exposed."

If you violate this ordinance, you're likely to also violate Florida Statute 877.03 on disorderly conduct, which is punishable as a second-degree misdemeanor.

Topfree member Kayla Sosnow, from Gainsville, knows the law all too well.

Sosnow says she endured 20 days in jail in 1996 for taking her shirt off in Osceola National Forest. She denied the claim that children and general public were present at the time, even though her police report says otherwise.

After seven months of fines and sporadic jail sentences, Gainesville Judge Joe Williams finally dropped the charges and released her from jail.

Sosnow says Williams "realized an innocent (although outspoken) woman had been held in jail ... on baseless charges."

Sosnow posted a full account of her experience on the Topfree 10 website at legalfreedom.com/topfree.

Similar cases have overturned city ordinances that criminalize women for exposing their breasts in New York, the District of Columbia, Ontario, Maine and Idaho.

But the Topfree 10 may not get their day in court. Mark Tietig says a motion has been filed by Brevard County to dismiss the case on procedural grounds. Judge David Baker of U.S. District Court in Orlando is scheduled to rule on the dismissal motion in the next two weeks.

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