An Ontario woman recently launched a human rights complaint against the municipality of Cornwall over its policies preventing her from swimming bare-breasted at public pools. This legal challenge comes two decades after courts recognized women’s right to bare their breasts in public in Ontario. In this blog we explore whether your condominium can adopt a dress code for the pool?
In the News
The media recently reported that an Eastern Ontario women launched a human rights complaint against the municipality of Cornwall, 7 hotels and a waterpark over their policies preventing her from swimming topless. Apparently, the City of Cornwall still had in its books a policy requiring women and girls over the age of 10 to wear tops while using the municipal aquatic centre, outdoor pools or parks. Cornwall Mayor is quoted to have acknowledged that the policy was outdated, discriminatory and gender-based. For its part, the waterpark is reported to have maintained its ban against female toplessness on the ground that they are a family-oriented amusement park.
Time will tell how that story will end but courts have already ruled on similar cases.
The Current State of the Law in Ontario
Canada has a tangle web of confusing and inconsistently applied nudity laws. The starting point is that the Criminal Code continues to forbid nudity without a lawful excuse on public property or on private property that is exposed to public view. Municipalities have relied on this clause to prohibit female toplessness. Over the last few decades however, many Ontarians have successfully contested such rules on the basis of discrimination, since such prohibition only applied to females.
Perhaps the most famous case is the 1996 Jacob’s case, which once and for all, ruled that women in Ontario have the right to bear their breast in public. In this case, a Guelph woman was charged with committing an indecent act. The Court of Appeal applied the community standard of tolerance test and concluded that the act was not done for sexual gratification and did not harm the community. From this point forward, female public toplessness was understood to be authorized in Ontario.
Over the past decade, a number of Ontario municipal policies have since successfully been challenged or modified on the basis of this precedent. The city of Cambridge eliminated its toplessness policy after two women were charged with trespassing for swimming topless in protest of the city’s ban in 1997. In 2015, the city of Guelph changed its policy after an eight-year-old girl was told by city staff to cover up while she was in a wading pool wearing only a swim bottom. In 2015, there was a similar challenge out of Kitchener, after three sisters were asked to put their shirt back on while riding a bike.
The central question in all of these cases: is it discriminatory to prohibit public female toplessness while allowing males to bear their torso in public.
This debate was likely put to rest in 2012 when the Ontario Superior Court concluded that it was discriminatory to differentiate between male and female toplessness. In that Brantford case, the city was brought to court over a discriminatory licensing fee, which imposed a “tax” on strip clubs when the female breast was exposed but without an equivalent when male entertainers exposed their chest. These provisions created a discriminatory distinction between male and female topless entertainers and were found to be inconsistent with the Human Rights Code.
Dress Codes at the Condo Pool
The above and the pending legal challenge brings us to the inevitable question of how any of this affects your condo pools? Can a condominium impose a minimal dress code, requiring women to wear a top?
Oddly enough, so far, the media have reported more instances where the complaint was about swimmers wearing “too much” rather than not enough. Specifically, in Scarborough, a Muslim family was reported to have been turned away because they wanted to swim with long shorts and T-shirts. This is said to have led to an apology and the condominium was to post a copy of the Human Rights Code in the pool area.
A similar controversy was sparked when a dress code “error” found its way into a St. Clair West public pool brochure, which appeared to demand that females wear a full swimsuit and T-shirts. This turned out to be an error.
So, what can condos do about this? Can they prohibit female toplessness when Ontario has ruled such restriction to be discriminatory? The answer is likely “no”.
Condominium corporations cannot, in my view, adopt a policy or a rule which is discriminatory. Any dress code would need to be reasonable, grounded in a bona fide requirement and equally applied to all.
For instance, a rule prohibiting fully-dressed swimming may be found to be reasonable on the basis that fully-clothed swimming may not be hygienic and may actually present a safety risk. But such dress code restriction would have to be applied to all, without discrimination of age or gender. You could also demand that pool user wear a swim cap.
On the other end of the spectrum, while swimmers cannot commit an indecent act or swim in the nude, both male and female are likely allowed to swim topless. While some may find this conclusion to go against their values or the social norm in Canada, courts have already rejected the argument that female breasts are somehow the object of sexual attraction and desire more than the male chest. In the Brantford case, her Honour concluded that “the manner in which the human torso, whether male or female, is perceived from a sexual standpoint is not gender specific. It is entirely dependant on the individuals involved at the relevant time.
… indeed, beauty is in the eyes of the beholder.