Women's topless court victory 20 years later

When university student Gwen Jacob removed her top to cool off on a sweltering summer day in July 1991, she unwittingly spearheaded a movement to give all women in Ontario the legal right to expose their breasts — though most still choose not to.

Go topless? No thanks, say most women

Gwen Jacob stands on Gordon Street where as a 19-year-old in 1991 she walked without a shirt. She was charged with committing an indecent act but ultimately won a court victory. (Brent Foster/The Guelph Mercury )

When university student Gwen Jacob removed her top to cool off on a sweltering summer day in July 1991, she unwittingly spearheaded a movement to give all women in Ontario the legal right to expose their breasts — though most still choose not to.

This week marks the 20th anniversary of Jacob being charged with committing an indecent act in Guelph, Ont., after walking home with her top off in 33 C weather.

Police had acted on a complaint from a mother who was concerned after her young children had seen Jacob walking topless.

At the time, the 19-year-old Jacob said she got the idea to take off her top after watching a group of shirtless men playing sports. By removing her top, she drew attention to the double-standard in law that deemed it acceptable for men, but not women, to go bare-chested.

Jacob, photographed in 1991 when she was a 19-year-old University of Guelph part-time student, vowed to fight for women's right to go topless in public. ((Jerry Bookhout/Kitchener-Waterloo Record) )

"There were men [who were topless] walking right past the officers who arrested me and they didn't do anything about them," Jacob told CBC News in an interview in 1991. "But being a woman and having slightly different-shaped breasts, I was arrested for it."

CBC News was unable to reach Jacob for an interview Tuesday.

She recently spoke about the impetus for her actions 20 years ago on a podcast for The Naturist Living Show.

"I spearheaded this movement. I didn't really mean to start a movement. I was just trying to a catch a breeze. I was 19 years old. Today, I may take my shirt off occasionally, but it's not something like, 'OK, we can, so let's all do [it]' … I didn't care what was done in the past, this was the way we were going in the future."

The court fight

In 1991, Jacob was found guilty of one count of committing an indecent act and fined $75.  During her court case, she argued that women's breasts are just fat tissue, not unlike men's.

But in his ruling, the judge said a woman's breast is "part of the female body that is sexually stimulating to men both by sight and touch," and should not be uncovered in public.

In 1996, the Ontario Court of Appeal overturned Jacob's conviction, saying "there was nothing degrading or dehumanizing in what the appellant did. The scope of her activity was limited and was entirely non-commercial. No one who was offended was forced to continue looking at her."

Moreover, the court ruled that Jacob did not exceed "the community standard of tolerance when all of the relevant circumstances are taken into account."

The court did not rule on the constitutionality of the issue, though Jacob's lawyer had argued that her client had the same constitutional right to go topless as men did.

Despite the court victory, most women, like some on the University of Toronto campus who spoke to CBC News, don't choose to go topless even in hot weather.

Donna Moss said there are still taboos around women walking around bare-chested.

"I think it's not seen as appropriate, like as appropriate as when guys do it. It's a social thing," Moss said. "There are cultures where it's OK to do that, it's perfectly fine. I actually don't see any problem with it in and of itself."

Adrienne Batke said she'd never go topless.

"No, because of the interpretation of the behaviour. It's still deviant, right?" Batke said. "If you are going to make something legal, that's one thing, but the culture has to change around it."

The fact that women still don't choose to go topless is not the point, said Judy Williams, with the Vancouver-based Top-free Equal Rights Association, a grassroots group started in the wake of Jacob's legal battle.

"The whole point is we have the right to divest ourselves of our tops.… It's not a moral issue. It's a civil rights issue," said Williams. "If a woman is hot and wants to enjoy the sun all over, why is it that she can't, while a man, who may have larger mammary glands, can?"

Women are reluctant to go topless because of fear — fear of censure by society, fear of being ridiculed and fear of having their breasts compared to those of other women, said Williams.

Williams, a retired teacher, said she occasionally goes topless "and no one blinks an eye" in Vancouver, where the practice has also been accepted after a court fight. She said some men have complained that her breasts weren't "perky" enough when she went topless, but she brushes off that criticism.

"Canada needs to grow up like our European brethren. There are enough oppressive laws and social mores that restrict our freedoms," she said.

While Jacob's court case did open the door for women to breastfeed in public, little else has changed since that sweltering day in July when she went topless to get relief from the heat, said Judy Rebick. She was president of the National Action Committee on the Status of Women, Canada's largest women's group, at the time Jacob went to court.

"In 20 years I don't think I've ever seen a woman topless on the street," Rebick said. "Women don't walk around topless because they get hassled, they get harassed if they do. People stare at them. It's cultural, something about North America and the Puritan history."

With files from Jasmin Seputis