Do Croton Trustees Actually Read The Laws They Pass? A Letter From Paul Steinberg
GAZETTE
To the Editor:
Is that a copy of the Croton Village Code in your pocket, or are you just glad to see me? As Croton repeals Chapter 66 of the Village Code and replaces it with an amended Section 230-4, exposed nipples and turgid penises are a matter of legal relevance.
Croton’s new definition of “Sexual Anatomical Areas” mirrors the previous definition in effect since 1994. It applies to “less than completely and opaquely covered…. female breast[s] below a point immediately above the tip of the areola.” A second provision applies to “male genitals in a discernably turgid state even if completely and opaquely covered.”
The provision regarding female breasts is a violation of both the US and NY Constitution, and was unconstitutional when Croton passed the law in 1994. This was resolved during the “Free the Nipple” litigation resulting from the arrest of bare-breasted women in Rochester for violation of NY Penal Law 245.01 prohibiting women (but not men) from showing nipple in public.
The 1986 ruling dismissing the charges is online (you can google “134 Misc 2d 121”). It is a good explanation of the limits to governmental restriction on free speech, and equal protection regardless of gender. The case went up to the NY Court of Appeals, which in 1992 upheld the dismissals while avoiding ruling on the constitutionality of PL 245.01 applying only to females.
Although the legislature did not amend PL 245.01, there is nobody who would seriously argue that the statute would survive a court challenge today.
To the extent that the Croton Board of Trustees seeks to regulate display of breasts on grounds of sexual arousal, the male breast is a more appropriate target. The breasts of non-birthing persons traditionally have only served an erotic function, whereas birthing persons could use the breasts for lactation.
In his 1992 concurrence to the Rochester nipple case, Judge Titone said: “since the statute prohibits the public exposure of female—but not male—breasts, it betrays an underlying legislative assumption that the sight of a female’s uncovered breast in a public place is offensive to the average person in a way that the sight of a male’s uncovered breast is not. It is this assumption that lies at the root of the statute’s constitutional problem.”
The underlying premise of the Croton nipple law is expressed in the Seinfeld case involving a nipple covered by a bra but no blouse: Kramer v. Mischke (NY County 1996). Plaintiff’s counsel Jackie Chiles summarized: “So we got an attractive woman, wearing a bra, no top, walking around in broad daylight. She’s flouting society’s conventions!”
Croton passed a misogynistic law in 1995 and never bothered to change it. Now it is 2024 and our Board of Trustees either has not bothered to read the new law they are voting on, or the trustees of Croton remain uniquely bothered by the female nipple. My guess is nobody bothered to read the law—it would not be the first time.
Failure to read and think before making policy decisions is a bigger problem than nipples. Years ago it was common for the Croton trustees to hire an outside consultant to do the work that village employees and the Board itself should have been doing. Currently the village has hired a company called “General Code” to update the Croton Village Code. Many municipalities do this, which explains why they end up with the same municipal laws.
There is nothing wrong with getting advice, but rubber-stamping someone else’s work without even reading it is a management failure. If a prankster at General Code inserted a draft provision requiring that Croton residents bounce through the Upper Village on pogo sticks each Wednesday, I suspect our Village Manager and trustees would pass it into law unanimously and with the approval of the Village Attorney.
Croton history suggests that the Village Attorney will come to whatever conclusion keeps the Board happy, and Croton trustees don’t want to read the supporting documents before making policy. That leaves the Village Manager as the last line of defense against dumb decisions. As a government employee, he takes bias training. As a specialist in public administration, he knows that laws which are facially discriminatory on the basis of gender are problematic. As someone who spends his days in Croton, the Village Manager knows that reinforcement of archaic binary gender stereotypes is no longer acceptable.
Just because other municipalities rubber-stamp whatever General Code puts in front of them does not mean that Croton should do the same. As a progressive community, we should be showing the way to equal treatment of all gender identities and all genitalia. Croton must be a safe space for all, not just the white cisgender patriarchy. Rochester freed the nipple back in 1986. It is time for Croton to free the nipple in 2024.
If the trustees do decide to leave the female-only nipple ban enshrined in the Village Code, they should provide a definition of “female.” Thirty years ago it was clear who was female and who was not, but the most recent Supreme Court appointee famously said it would take a biologist to determine who was a woman and who was not. Even if Croton retains a biologist, there is still the fact that a display of moobs is far more offensive to many members of the public: if the Board of Trustees wants to regulate breasts, start with moobs.
Let’s not forget about the turgid penis. When Croton first regulated the display of penises, science was still in the dark ages. In their ignorance, people believed that a penis was exclusively a male appendage. But in 2024 we know that a woman can have a turgid penis. A woman displaying an erect penis is arguably more offensive to the general public than a man displaying an erection.
I don’t object in principle to the Croton law because I don’t want to see anybody’s turgid penis when walking around the village; restricting such display to a zoned Light Industrial Area (LIA) is one of the better ideas the Board of Trustees has had recently.
As written, the Croton Village Code discriminates against women with nipples and also against women with turgid penises. It should be revised to reflect modern science and written in a manner which does not require a Croton official or Croton Village Court to determine the definition of “male” or “female.”
Whether on the street or in a cabaret, Croton law must not discriminate on the basis of gender identity. We need no longer fear the female nipple, and Croton should treat all turgid penises equally regardless of whether the penis belongs to a man, a woman, or a different gender.
In the meantime, my advice to men is to avoid wearing speedos except in a part of Croton zoned as an LIA. For those identifying as a woman: if you see a Code Enforcement Officer looking at your cleavage, follow the example of Terri Hatcher. Look the officer in the eye and firmly say: “They’re real, and they’re spectacular.”
--Paul Steinberg, Croton-on-Hudson
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