Do Women Have the Right to Breastfeed in Public?

A baby breastfeedingA judge in Henderson County, North Carolina made the news by scolding a woman for breastfeeding her baby in his courtroom. The judge told the woman she should leave the courtroom, “cover up,” or stop feeding her baby. The woman explained that her baby would not tolerate having his face covered, but that made no difference to the judge. The hungry baby cried while the mother waited for her case to be called, but the judge apparently considered breastfeeding to be more disruptive than a crying baby.

The mother was shocked because she knew that North Carolina law does not prohibit breastfeeding in public. The state’s “indecent exposure” law expressly allows women to breastfeed in any public or private location where she is authorized to be, whether or not breastfeeding exposes the woman’s nipple. The judge therefore admonished the woman for doing something that North Carolina expressly authorized.

Judges generally have authority to maintain decorum in a courtroom. The notion that breastfeeding a baby is a breach of decorum may be antiquated, but women continue to face harsh criticism when they breastfeed on airplanes, in museums, in fitness centers, or in other places that are open to the public.

Breastfeeding advocates are concerned that “shaming” women for breastfeeding their babies in public will encourage mothers to feed their children formula from bottles. That deprives babies of the nutrition, immunity, and bonding benefits that come from breastfeeding.

The Right to Breastfeed

Every state except Idaho has enacted a law that protects the right of women to breastfeed in public. In 29 states, breastfeeding has been made an exception to the state’s indecent exposure law. In the remaining states, women may need to cover their breasts when breastfeeding in public.

A federal law protects the right of women to breastfeed when they are lawfully on federal property, including courthouses, post offices, and other federal buildings. In addition, a provision of the Fair Labor Standards Act (which applies only to businesses with more than 50 employees) requires employers to give lactating women reasonable periods of uncompensated break time for one year after giving birth so that they can pump their breast milk.

Breastfeeding and Gender Discrimination

Does a judge engage in gender discrimination when he tells a woman she cannot breastfeed in his courtroom? In 1976, the Supreme Court held that firing (or refusing to hire) a pregnant woman because of her pregnancy did not constitute gender discrimination because those employment actions are not gender-based. In other words, if employers were equally willing to fire pregnant men, they were not treating women differently by firing them for becoming pregnant. The fact that only women are biologically equipped to become pregnant did not seem relevant to a majority of Supreme Court.

To remedy the injustice of that decision, Congress immediately passed the Pregnancy Discrimination Act (PDA). That law made pregnancy and childbirth, like gender, improper classifications upon which to base employment decisions. Yet even before the PDA was enacted, many observers recognized that pregnancy discrimination was by its nature gender-based. Employers were basing employment decisions not on the fact of pregnancy, but on stereotypical assumptions about pregnant women, including the fear that a pregnant woman would quit her job or refuse to return to work after giving birth. The fact that employers did not apply those same stereotypes to men who fathered a child provided strong evidence that discrimination against pregnant women was gender-based.

Arguments that parallel early decisions involving pregnancy discrimination have been used in opposition to public breast-feeding. A judge might claim that his rule against breastfeeding in his courtroom applies equally to men — or it would, if men were equipped to breastfeed — so prohibiting breast-feeding is not gender-based discrimination. Yet the reality is that gender-based characteristics determine whether the rule will apply.

A federal district judge in the Southern District of Texas ruled in 2012 that an employer did not violate laws against sex discrimination by refusing to allow a woman to return to work after giving birth. The woman wanted to resume her employment but asked for permission to use a breast pump during her breaks. She explained that she was lactating and offered to use a back room to pump her breasts. Although the employer claimed she had abandoned her job, there was sufficient evidence to permit a jury to conclude that the employer based its termination decision on the fact of the woman’s lactation. Concluding that it is not illegal to fire a mother for lactating, the judge dismissed the case without giving a jury the chance to resolve that dispute.

On appeal, the Fifth Circuit held that firing (or refusing to hire) a woman because she is lactating places a burden on women that male employees do not suffer. Although the court also held that lactation is a pregnancy-related medical condition covered by the PDA, the court’s broader reasoning recognized that treating women differently because of their physiology constitutes sex discrimination. The decision sends a hopeful message to women who want to breastfeed (or to pump their breast milk) without fear of losing their jobs or being kicked out of courtrooms.

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