You and your infant child are out shopping, and she starts getting cranky. Yep, she’s hungry. As you begin breastfeeding her, an employee approaches you and tells you that you have to stop and claims that you could be arrested for “indecent exposure” or “disorderly conduct.”
Come on people, they’re just boobs!
What are your rights? Do you know what the law says? Can this employee really make your child go hungry? Can you really get arrested for public breastfeeding?
Is public breastfeeding Disorderly Conduct?
One of the most common threats that employees, or other patrons for that matter, make against breastfeeding mothers is that they are committing “disorderly conduct.” Do you know what constitutes “disorderly conduct” under the law?
“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)
To answer the question: NO. Public breastfeeding does NOT constitute disorderly conduct even if the breast is briefly exposed.
Is public breastfeeding Indecent Exposure?
Another crime that ignorant people like to threaten breastfeeding mothers with is “indecent exposure.” I mean, it even sounds like it might be applicable right? Well, that’s what they’re banking on.
Under the law:
“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)
First, there is a serious question over whether breasts are genitals. Genitals does not have a definition within the Penal Code, and Courts have determined that because the term “genitals” is not statutorily defined and has not acquired a special legal or technical meaning, it is improper for the trial court to define the term for a jury. Since we do not have a definition, it is difficult to state with any certainty that breasts are, or are not, “genitals.”
Common sense would tell us that they are not.
However, Courts have come up with crazier definitions. Need I remind of the California Supreme Court deciding that “bees are fish” under the endangered species act?
Second, even if breasts are genitals, the exposure would have to be “with intent to arouse or gratify the sexual desire of any person.” Anyone who has ever tried to calm a screaming hungry infant can tell you that sexual arousal is the LAST thing that mother intends at that moment.
Therefore, even though “indecent exposure” sounds like an applicable crime that public breastfeeding might merit, it is very clearly not applicable.
Public breastfeeding 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
Among just SOME of the MANY benefits of breastfeeding, did you know that breastfeeding protects babies from infections and illnesses that include diarrhea, ear infections, and pneumonia? Also, breastfed babies are less likely to become obese, less likely to develop asthma, and have a reduced risk of sudden infant death syndrome.
—See https://www.hhs.gov/surgeongeneral/reports-and-publications/breastfeeding/factsheet/index.html
Texas law also states that, “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
Texas isn’t alone in passing public breastfeeding laws. In 2018, Utah became the 50th state to pass a law making it clear that mothers have a right to breastfeed in public.
A “public place” is generally defined as any location in which the public has access to.
So long as you are authorized to be there, then you have a right to breastfeed there.
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. Private property owners can decide to declare you a trespasser and force your removal from their property.
Now, whether or not their act of kicking you off of the property for breastfeeding rises to the level of discrimination that would support a civil lawsuit 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 public breastfeeding.
Whether or not you choose to breastfeed is a private decision between you, your family, and your doctor. Just like that decision is nobody else’s business, it is also nobody else’s business where you decide to feed your child.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Family Law Division
1101 Broadway, Lubbock, Texas, 79401-3303
Tel: (806) 702-4852 | Fax: (800) 985-9479