The Current

Ontario woman fights for right to swim topless

Twenty-six years after women gained the right to go "top-free" in public, a new human rights battle reveals just how controversial female nudity continues to be.
Women march at the first 'Top Free Run' in Kingston, Ont., on July 19, in celebration of a woman's right to bare her breasts. The event commemorated the 26th anniversary of the day when Gwen Jacob took her shirt off on a hot day in Guelph, Ont. — and was charged with indecency. (Hannah Yoon/Canadian Press)

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It was 26 years ago that Gwen Jacob was charged with committing an indecent act for taking off her top on a hot summer day.  Her case made history when the court overturned her conviction, seeming to clear the way for women to go as, she says, "top-free."

But a new human rights battle in Ontario reveals just how controversial women taking off their shirts in public continue to be.

There's a huge lag between what gets legalized and what gets normalized.- Gwen  Jacob, on The Current

Filing her case with the Ontario's Human Rights Tribunal in February, a woman says she was told she would not be allowed to swim topless at various public pools — including at hotels, at a water park near Ottawa, and a pool in Cornwall.

The complainant has chosen to remain anonymous, but her lawyer, Marie-Pier Dupont, tells The Current her client is suing on the basis of gender discrimination.

"All these installations allow men to swim without covering their breasts but won't allow women to do so. It was specifically denied in her case simply based on the fact that she's a woman," Dupont tells guest host Laura Lynch

"It's a question of equality. If you say a man can go around topless, then a woman should also have the same right."

The city of Cornwall is one of nine respondents in the human rights case before an Ontario tribunal. Ontario Human Rights Code prohibits discrimination based on sex and gender. (CBC)

Because it's being fought in human rights tribunals, the case would extend the responsibilities of service providers and get beyond the particularity of criminal rulings, says Mariana Valverde, a professor at University of Toronto's Centre for Criminology and Sociolegal Studies.

"At least now it's a question very clearly of women's rights to equality and the obligation of even privately-owned businesses like pools and restaurants to treat people on an equal basis," Valverde explains on The Current

"If we have a decision that's favourable to her case, that will apply to women all across Ontario," says Dupont.

Marie-Pier Dupont is a lawyer representing an Ontario woman who has filed a human rights complaint after being told by several hotels that she would not be permitted to swim topless in their pools. (Roger Dubois/CBC)

But Valverde says that when it comes to women going topless in public, the issues extend far beyond the legal system.

"Frankly, whether women's breasts are sexual or not is not a legal question — that's a question to be debated in society. And hopefully at some point we'll realize that they can be sexual some of the time and not sexual other times." 

"It's sort of odd and somewhat unfortunate that we are still having these debates."

Gwen Jacob agrees laws are changing faster than social norms.

"There's a huge lag between what gets legalized and what gets normalized," she tells The Current.

"We have to look at why women are uncomfortable doing it? When you put the onus back on the woman not to dress in certain ways —  to try and avoid unwanted attention — you actually turn the conversation upside down. The question is why are women afraid to do it and what can be done to shift the environment?"

Listen to the conversation at the top of this post. 

This segment was produced by The Current's Karin Marley, Jack Julian and Idella Sturino.