Who Can Legally Go Topless in Texas?
If you want to start one of those debates among friends with passionate feelings on both sides, pose the question, "Can a Drag Queen, a man dressed as a woman, legally perform topless in Texas?" It is not a simple question.
In fact, before we can even go there, we would have to address whether or not it is legal for biological women to go shirtless in Texas.
When it comes to women baring their breasts in public, you would think that would be an automatic "no." Everyone knows Texas is a conservative state, and people here don't go for nudity.
Actually, like everything else when it comes to the law, it is not that simple.
According to an international topless advocacy group, Go Topless, Texas is one of 36 states where "top freedom is in effect." That means no laws directly prohibit public toplessness.
If you want to try it in San Angelo, prepare to be arrested. In fact, in San Angelo, it is illegal for men to be topless in public. Chapter 12, Section 12.06 of the San Angelo City Code states, "No person shall appear in any public place in a state of nudity or with indecent exposure, or dress in a manner intended to create the appearance of such nudity or indecent exposure."
Further, Texas Penal Code § 21.08(a) prohibits the public display of "genitals or anus of any person" in a public place or on someone else's property, with certain exceptions such as medical procedures or breastfeeding.
Even though the law does not specifically mention women's breasts, the courts in Texas have generally interpreted the law to include them. Women have sued that the law violates their First Amendment right to free speech, arguing that going topless is a form of expression.
Those lawsuits have had mixed results.
The most relevant case in Texas involved Taquita Love, who was arrested for walking topless down a street in Austin. In that case, the Texas Court of Appeals upheld the constitutionality of a law requiring women to cover their breasts in public. The court rejected Love's argument that it violated her equal protection rights by treating men and women differently.
The court rejected that argument because it was also illegal for shirtless men to do the same in that context. Outlawing male toplessness is NOT required to make the equal protection argument valid. Another court case outside Texas clearly put this forth.
A case decided by New Hampshire's Supreme Court rejected such an argument claiming that the different definition of what constitutes nudity for men and women is based on "the traditional understanding of what constitutes nudity." In other words, convention and tradition have a bearing on the matter.
The United States Supreme Court 2020 refused to hear the case challenging that ruling and let it stand.
Back to our original question. If you really want to get a good argument going in Texas, ask whether or not it is legal for a drag queen or man dressed as a woman to perform topless in Texas.
For the record, it would not be illegal for a drag queen to be shirtless in places where it is legal for men to be shirtless in public. Legally, even dressed as a woman, a biological man in Texas is legally still defined as a man.
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