Protesting Topless is Constitutionally Protected - High Court

WASHINGTON - Feb. 27, 2026 - PRLog -- Protestors who appear topless in public to demonstrate to protect rights related to sex and sexually are protected because such displays constitute "expressive conduct" covered by the First Amendment, the Washington Supreme Court has just ruled.

Another interesting issue raised by the case, but not ruled upon, was whether a transgender woman - who, according to President Donald Trump's executive order is a "man" - would likewise be free to go topless in public just like any other man, says public interest law professor John Banzhaf.  In the court's words:

"Because [defendant] was engaged in expressive conduct, the statute [which prohibits :obscene exposure"] should be construed to restrict only unprotected nude conduct to avoid a constitutional problem. "Protected expression" is conduct that (1) conveys a particularized message, and (2) the surrounding circumstances create a great likelihood that the message would be understood by those who viewed it. Here, [defendant's] expressive conduct is constitutionally protected because she conveyed a particular message—protesting discrimination against transgender people"

Because the defendant was a biological male, carried a sign saying "The president says I'm a man," and said "I'm protesting the president calling me a man," another defense which might have been raised on her behalf, and on behalf of other transgender women, is that they have the same legal right to appear shirtless in public as other men, suggests Banzhaf.

He notes that some biological men have enlarged breasts which may be bigger in some cases than those of some women who are more moderately endowed; that some women naturally have breasts which are as small as those of many males; and that some women who have undergone breast surgery may have virtually no female-typical breasts at all.

In these and perhaps other situations - for example exposure of the female breast in public is permitted for breast feeding - there may be little sense in criminalizing the exposure of the breast of females but not of males.

Indeed, it has been argued that such laws violate the Equal Protection Clause of the Constitution, says the law professor, who successfully argued that some laws and policies which discriminate against women unconstitutionally violated Equal Protection.

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