“Changing a prejudicial law is the first step in changing society’s perceptions.”

March is Women’s History Month (in the US).

I am doing a series of posts about women who’ve made an impression on me.

Gwen Jacob ((Jerry Bookhout/Kitchener-Waterloo Record) )
Gwen Jacob ((Jerry Bookhout/Kitchener-Waterloo Record) )

You have probably never heard of Gwen Jacob. This is unfortunate. In the early 90s, Ms. Jacob fought in the Canadian court system for equal rights. It was a case that you probably didn’t hear about, or that you probably dismissed because in the media, it was treated with a lighthearted brush, but at its very core, it was a serious case, and Gwen Jacob deserves far more credit for what she did. In fact, the nature of this case ought to be distressing for women *and* men because, at least in part, of what the judge who heard the initial case, said during the ruling.

I’ll give you an abbreviated version of what happened, but there is plenty of information about the case available from equal rights websites, media sites, and Wikipedia. In short, Gwen Jacobs walked home without a shirt on, during 30ºC+ weather in Guelph. She walked home past fields of young men who were topless. She was charged with public indecency, a law in Canada which is ill-defined. The sections of the Criminal Code of Canada which were violated are sections 173 & 174:

173. (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months.

Exposure

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

R.S., 1985, c. C-46, s. 173; R.S., 1985, c. 19 (3rd Supp.), s. 7; 2008, c. 6, s. 54; 2010, c. 17, s. 2; 2012, c. 1, s. 23.
Nudity

174. (1) Every one who, without lawful excuse,
(a) is nude in a public place, or
(b) is nude and exposed to public view while on private property, whether or not the property is his own,
is guilty of an offence punishable on summary conviction.

Nude
(2) For the purposes of this section, a person is nude who is so clad as to offend against public decency or order.

Consent of Attorney General

(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

R.S., c. C-34, s. 170.

Ms. Jacobs’ point, I believe, in her own defense, was that if the Criminal Code of Canada does not consider males’ toplessness to be “nudity”, then it oughtn’t consider female toplessness to be “nudity”. To do otherwise is sexist and represents discriminatory treatment based on gender. Breasts are not genital organs. They are not, *by definition* genital organs. They are mammary organs.

But Gwen Jacobs was charged with public indecency and at her trial she was found guilty and was fined. Here is part of what the judge said in handing down that sentence: “The judge explained that a women’s breast is “a part of the female body that is sexually stimulating to men both by sight and touch”. He therefore deduced that it was appropriate to restrict their public exposure.” This is the part that should be upsetting to everyone.

As a society, we don’t get to dictate what is and isn’t sexually stimulating. Some people have a thing for feet. Some folks get boners over legs, or the nape of a neck. Some people get splooshy about intelligence. By singling out one female body part as having a primary purpose of sexual stimulation (by one gender), the judge in Jacobs’ case pretty much affirmed the need for the continued efforts of feminism – this is what women have been saying since the 1800s. Our bodies are not objects and society in general doesn’t get to tell us what our bodies are for.

Gwen Jacobs appealed that judge’s decision, a decision which was upheld in provincial appeals court. Five years after she was arrested, the Ontario Court of Appeal overturned Jacobs’ conviction, on the grounds that the act of being topless is not in itself obscene nor a sexual act. Twenty years after Jacobs stood up for gender equality in Canada’s criminal code, there is still ambiguity, and women are still charged with indecency for going topless.

Thankfully, most of Canada isn’t as backwards as other jurisdictions that charge women under indecency legislation for nursing their babies. But there are still plenty of cases of women being charged with indecency for swimming topless or sunning topless or, in some cases, dancing topless. Consider Saskatchewan’s backward “Frat House Legislation” which makes it legal for women to dance and strip in night clubs (welcome to the 20th century, Saskatchewan) as long as they do not reveal the “ends of their breasts”. Because we are all terrified of nipples.

Gwen Jacobs’ act at 19 and her subsequent stand for her rights and for the rights of all women and men in Canada gets her a HUGE spot on my “important women” roster.

cenobyte
cenobyte is a writer, editor, blogger, and super genius from Saskatchewan, Canada.

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