Charles Durning Carroll

It’s Your Right

When I searched for an image appropriate for this story by requesting images of “public nudity” the search engine thought I was looking for “public libraries” and so gave me this picture of books in a library. I love libraries and I think you should be allowed to be naked in them, so I chose this image.

Let me begin with my claim — the one made in the title of the piece: you have a right to be naked in public. While of course you don’t need to exercise that right, you do have it as one among your other inalienable rights. Furthermore, I intend to argue, you may exercise that right in any “public” place — e.g. any place where other people argue that “comfort should determine what you wear” or that “people have no right to tell you what to wear.”

I acknowledge and think it vital that in some spaces nudity is NOT permitted, but in these contexts where nudity is banned, the organization that regulates nudity may also choose to arbitrarily and without further justification regulate all aspects of how users of that space dress themselves. If the organization regulating the space requires that everywhere people congregate they must wear a bunny suit and a top hat, then these organizations possess that right. Those choosing not to wear the bunny suit and top hat may be denied access to the facilities “just because,” without providing any reasons for this decision.

Gender and Nudity

The ethics of public nudity cannot be separated from questions of gender and sex. Our bodies — their similarities and differences, our judgments and sexual desires, arousal, self-control — all of these factors are at play in the question of the ethics of public nudity. Claims around nudity are always controversial and subject to disagreement. Public nudity arguments are inherently political and bound up with a key question about gendered bodies: “Should we treat male and female bodies the same way when it comes to nudity?”

This question cannot be simply answered. Male, female, and otherly-gendered bodies are at once similar AND different. To some great degree how we answer the question above depends on what our aims are — are we a woman seeking to reduce street harassment, someone transgender trying to find self-expression in a newly crafted body, or a male pervert trying to get off in front of a crowd?

My own view is that whatever choice we make about gendered bodies, we must be consistent. I argue for consistency as the only option that is truly fair so that rules are not made willy-nilly. If we argue that male and female bodies are different when it comes to public nudity then we must accept what follows from that — that clothing rules may be made for one gender and not another. If we argue that male and female and othered bodies are the same, then we cannot legally or morally place restrictions on how bodies are covered or uncovered based on perceived gender differences. Whichever way we go we must accept the limitations and flaws that come with our own arguments.

The Public Nudity Consensus: Illogical and Arbitrary

The consensus on public nudity is currently something like this: Wear anything you want, but wear something. Dress according to context. Women’s bodies, unlike men’s bodies, are over-judged and over-regulated. In general men need to wear more clothing (lots of unpleasant looking men letting it all hang out), while women of any body type need to be free to determine their own clothing choices, whether that be a niqab, hijab, short-shorts, a micro-mini, a bra as outerwear, or a see through t-shirt and no bra. Men, in general, need to learn to control themselves, so that women can feel free to dress as they want.

There are two key problems with the consensus view: 1) it regulates everyone’s choices about what to wear; 2) at the same time it proposes less regulation of what women wear while preserving or expanding the regulation of male clothing choices. Some might argue that social politeness and the history of women’s experiences justify this consensus.

But the consensus fails the fairness test because it argues that less regulation is good for one group but not another. In Rawlsian terms, it pierces the “veil of ignorance” to look at the gender of the people behind it. It violates the original position by presupposing an inherent inequality between the contracting parties.

The consensus also fails because 1 and 2 are inconsistent — either we regulate what everyone wears and we do so according to the principle that all forms of clothing regulation are allowed based on someone’s arbitrary preferences for what is revealed or concealed, or we allow for differences in regulation based merely on our discomfort and accept on principle that all forms of discomfort are equal. The consensus view prevents gender equality because it violates the fundamental principles of fairness.

Nudity as Equality and Inequality

As anyone who’s ever spent a significant time naked around others discovers, nudity is a great equalizer. Clothing is not only terrible for the environment, but is also a marker of social status and a way of concealing imperfections so as to accentuate differences between bodies. A strong belief in human equality should correlate with a strong belief in human public nudity, for it would be difficult to have one without the other. To the degree that feminism is actually about equality, anti-nudity laws are also anti-feminist.

The caveat to my claim is that as I’ve acknowledged above, female bodies are sexualized in a way that men’s bodies are not. The question becomes then, is that fact a sufficient reason to ban public nudity? Let’s first recognize that society has an interest in preventing harm. If nudity (primarily male nudity) becomes a threat to others then it is indeed ethical to regulate clothing choices, and in that case it may make sense to ask both genders to wear something. However, it isn’t clear that that is the case.

The data on public nudity and non-consensual sexual activity is very limited and comes with a number of caveats. Most researchers claim that there is no connection, but I did find one study that showed a correlation between female nudity and male sexual disinhibition. What the study means, however, in a way that the “wear what you want but wear something” crowd might find uncomfortable, is that female nudity actually prompts males to sexually disinhibit, suggesting that among other reasons, one of the causes of rape may be simple male sexual arousal. Crucially, however, the naked subjects in the study were women not men. If there is any data suggesting that naked men are more likely than clothed men to disinhibit around females I haven’t been able to find it. This is one study only and the experiment was carried out in lab conditions. Without being clearly replicated it’s hard to see a pattern or to make decisions based on the limited data. For the moment the message seems to be that women walking around naked has at most a minuscule disinhibitory effect on male behaviour and men walking around naked has none. Since, however, most objections to public nudity are in the end objections to male nudity, removing those objections frees all genders to exercise their clothes-free rights.

No Defence for Offence

One of the key objections to public nudity has long been the idea of “community standards” or the “I don’t want to see naked people” defence. Much of the consensus around banning public nudity is based not on harm arguments, which if there was strong data for them, might be persuasive, but on claims about offence. It shouldn’t take much reasoning to see that offence claims are not arguments, they are merely beliefs. Furthermore they are arbitrary, for one person’s offence is always as good as another’s.

Why should the offence one group feels at naked bodies weigh more, for example, than the offence another group feels at women dressed in hijabs? What principle justifies our current view that the interests of the second group weighs more than the interests of the first? None. It is merely a personal preference for “modesty.” Modesty is not a principle, but an arbitrary bias. However, supporters of the consensus, in a perfect example of the tyranny of the majority, make modesty a principle when it comes to nudity, but schizophrenically deny such a principle when it comes to those who are clothed.

This grotesque inconsistency results in the idea that women particularly should be able to wear anything they want, but men particularly should not be able to go naked. Supporters of the consensus are libertarians for the clothed, but tyrants over the unclothed.

We must be one or the other. If we are true libertarians in terms of clothing and we argue on the principle of liberty that people are free to dress as they want, then we must as a matter of principle extend that liberty to those who wish to remain unclothed. If we would be tyrants and use our subjective judgments about “modesty” to ban nudity, then we must accept those who would ban, for example, women wearing short skirts or tops without bras, who might advance the claim that this too is immodest.

Fairness permits us to choose one option or the other — to advocate for freedom or for tyranny, but it does not allow us to remain in the current situation, one where one group is given freedom and the other group is arbitrarily ruled over by prejudice.