Excuse Me, Ma’am…
You and your infant child are out shopping, and she starts getting cranky. Yep, she’s hungry. As you begin breast-feeding her, an employee approaches you and tells you to stop.
Do you know what the law says? What are your rights? Can this employee really make your child go hungry?
“A person commits an offense if he intentionally or knowingly … makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace.”
—See Tex. Pen. Code § 42.01(a)(2)
The Disorderly Conduct statute is often used as a catch-all provision when there aren’t other grounds for arrest/detention. For example, a woman was arrested, charged, and convicted of disorderly conduct for going topless at a beach festival because her exposed breasts tended to “incite an immediate breach of the peace.”
—See Carreras v. State, 936 SW 2d 727 (Tex. App.—Houston [14th Dist.] 1996)
“A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.”
—See Tex. Pen. Code § 21.08(a)
Forget Disorderly Conduct and Indecent Exposure
The reason we needed to discuss disorderly conduct and indecent exposure is because those are the two most commonly threatened criminal actions against breastfeeding mothers, and many mothers are intimidated because the terms themselves sound just scary enough to be applicable.
So, you’re going to re-read those statutes just so you can stand confidently if someone accuses you of violating these laws simply by breastfeeding your child.
Breast-feeding is Protected in Texas
Texas law “recognizes breast-feeding as the best method of infant nutrition,” and that “breast-feeding a baby is an important and basic act of nurture that must be encouraged in the interests of maternal and child health and family values.”
—See Tex. Health & Safety Code § 165.001
“A mother is entitled to breast-feed her baby in any location in which the mother is authorized to be.”
—See Tex. Health & Safety Code § 165.002
As Long As You Aren’t Trespassing
Because you are entitled to breast-feed wherever you are authorized to be, an employee of a store has absolutely no right or ability to demand that you stop breast-feeding. You may recall a recent dispute that received lots of media attention when an employee pled for a mother to stop breast-feeding her child for the sake of “decency.”
—See Breast-feeding Discrimination—Burleson, TX
However, you aren’t allowed to breast-feed anywhere that you want. Obviously, you couldn’t break into someone’s home and enforce your right to breast-feed. On that same note if the owner of a business, or someone with authority over the premises, revokes your right to be present on the premises, then you must leave.
Now, whether or not their act of kicking you off of the property for breast-feeding rises to the level of discrimination that would support a civil action is a discussion for another day. But that shouldn’t stop you from firmly informing them that you believe they are discriminating against you for breast-feeding your child.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Family Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479