What The Law Made Of The Body
Men came to me from many places and many circumstances, and among them, over the years, were a number of men who had grown up in parts of the world where the conventions around the male body were different from the ones I had been formed in. Not always dramatically different—the differences were often a matter of degree rather than kind.
But occasionally a man would say something, usually in passing, that suggested the discomfort he carried in his body had a different origin from the discomfort I was more familiar with. Not Augustine. Not the Northern European Protestant tradition. Something that had been applied to him, from outside, within living memory or the memory of his parents. He had been given his shame by a process he could sometimes partially describe.
I have been thinking about those conversations in relation to what I have read about how the law has managed the body—the male body specifically, but the body in general—across the past two centuries. What I find in that history is not a single line of development but a set of distinct problems that the law addressed differently depending on which body was in question and who was doing the legislating.
The asymmetry is more stark than I would have predicted. In the United States male toplessness was technically illegal in many states until 1936, when a series of arrests of shirtless men at Coney Island was finally tested in court and the practice was legalised. Before that date, a man removing his shirt in public was theoretically committing an offence of public indecency alongside a woman who removed her blouse—the law treated both the male and female chest as requiring cover in public space. After 1936, the male chest was reclassified. It became, in the language that courts would later use, neutral. Not sexual. Not indecent. Simply a chest.
The female breast did not receive the same reclassification. What I notice in the legal history is that the male chest was normalised by removing it from the category of the indecent, while the female breast was kept in it—and that this asymmetry was not the result of any considered argument about the difference between male and female bodies but rather of the accumulated momentum of what had been decided before, maintained now by a logic that was largely circular.
When the New Hampshire Supreme Court rejected a challenge to its topless ban in 2019, it acknowledged plainly that the law treated men and women differently. Then it justified the difference by observing that exposure of the female breast “almost invariably conveys sexual overtones.” The court was citing as justification the very thing the plaintiffs were challenging: that the law had produced a cultural assumption which the law then used to perpetuate itself.
A tenth-circuit federal court, striking down a similar ban in Colorado the same year, named this directly—society’s sexualisation, it said, had “engrained in us the stereotype that the primary purpose for women’s breasts is sex, not feeding babies.” Such a stereotype, the ruling continued, “serves the function of keeping women in their place.”
I am aware that this is primarily a story about female bodies and female legal rights, which is not quite my subject. But what I find interesting in it, from where I sit, is what it reveals about the male body by contrast. The male chest, declared neutral in 1936, became invisible to the law. It was no longer managed. And in becoming no longer managed, it also became no longer noticed—the male torso in public space accrued the particular quality of the unregulated: present without significance, visible without consequence. I watched this in the men who came to me. The chest, for most of them, was not where their discomfort lived. The discomfort lived lower, where the law had not reclassified and had not stepped back.
What I have found in reading about the colonial export of modesty norms sits uneasily beside this domestic legal history. The legal evolution I have just described—the gradual, contested, uneven adjustment of what the law considers indecent—was a process that happened within Western legal traditions, negotiated by people who had grown up inside the same framework of shame and management that produced the Comstock laws and the fig leaf campaign. But while that negotiation was occurring, another process had already been completed elsewhere, and its effects were going in the opposite direction.
In Bechuanaland, in East Africa, in the Pacific Islands, in the indigenous communities of the Americas, a missionary and colonial project made the clothing of local bodies one of its central concerns. In Bechuanaland, missionaries saw the acceptance of European clothing as a sign of conversion—the body covered in European fabric was the body brought into the moral economy of civilisation. The Kikuyu and Maasai of East Africa, who wore animal-skin garments that left much of the torso exposed in a climate where this was practically sensible, were documented by European missionaries and administrators as primitive, their bodily practices evidence of the moral inferiority requiring correction.
British scientists in the late nineteenth century were using nude photographs of colonised people, supplied through the Colonial Office, as evidence for racial theories based on comparative anatomy—the same bodies that would elsewhere be prosecuted as indecent were circulated through scientific and administrative channels as data.
This is a distinction that the colonial project itself did not acknowledge: between the naked body in art, which Europeans had been arguing over for centuries but broadly accepted as a legitimate subject for cultivation, and the naked body in the field, which was read as evidence of savagery. A distinction was made by Europeans between idealised nudity in art and the nakedness of Indigenous people, which was uncivilised and indicative of racial inferiority.
The same tradition that had been arguing since the Renaissance about how much of the male body could appear in a painting without requiring the trouser-maker, arrived in East Africa and declared that the male torso in daily life required a shirt. The distinction was not about the body. It was about who the body belonged to, and what purpose the looking served.
The Samoan case interests me particularly, because I have read about it before in the context of what counted as clothing. Missionaries arriving in Samoa in the nineteenth century encountered a male body whose primary covering was the pe’a—the traditional tattoo that extended from the waist to below the knee. In Samoan understanding, the untouched male body was the naked one; the pe’a was the garment. The missionaries did not accept this.
European fabric was required. The encounter between missionary and indigenous clothing preferences sometimes produced striking results, as in the cultural synthesis in Samoan Christians’ bark cloth ‘ponchos’ that not only expressed new ideas of modesty but also in fact made modesty possible by providing new ways to cover bodies. This is the gap between what the missionaries intended—the imposition of a European framework of decency—and what actually happened, which was something more complicated: a negotiated object that belonged to neither tradition entirely.
The men who came to me and had been shaped by this colonial history were, in some cases, carrying something that the men shaped by the Augustine-to-Comstock tradition were not carrying in quite the same form. The Western tradition had produced shame through a long, gradual, internally generated process—shame that could be traced, however partially, from Genesis through Augustine through the Council of Trent through the Victorian legislation and out the other side into the contemporary legal patchwork.
The colonial process had produced shame faster, and from outside, and with less theological scaffolding to hang it on. Several men had told me something about this, not in those terms but in the particular quality of their unease—a sense that the discomfort was foreign, that it had arrived in their family’s story at a specific point rather than simply always being there.
I am cautious about overstating what a few conversations can tell me. What I notice is that both traditions—the internal Western one and the exported colonial one—arrived at similar practical outcomes: men who carried their bodies as requiring management, as potentially transgressive in their visibility, as needing careful contextualisation before they could be present without apology. The mechanisms were different. The residue was recognisable.
The law, as it has evolved in the past century in Western jurisdictions, has moved in two directions at once. It has progressively relaxed its management of the body in certain contexts—the Comstock laws dismantled, the censorship of naturist publications tested and loosened, the male chest declared neutral. And it has maintained, with considerable persistence, other forms of management—the female breast still contested in public space, the genitalia of any body still subject to complex and inconsistent regulation depending on context and jurisdiction.
The legal history does not tell a simple story of progress. It tells a story of a culture repeatedly negotiating with its own conventions about what the body means when it is seen, and arriving at different conclusions depending on which body is in view and who is doing the viewing.
One man I saw over several years worked in law. He found it faintly absurd that his professional life was partly spent interpreting statutes whose origins lay in the anxieties of men long dead about bodies they found alarming. He said once, getting dressed: “The law is just old panic, written down.” I have thought about that formulation since. It is probably too simple—law is also negotiation, and precedent, and the slow accumulation of cases that push in different directions. But as a description of a feeling, it was accurate.
The panic had been written down, and the writing had outlasted the original panic and acquired the authority of legislation, and now the legislation shaped what was and was not possible for the bodies it governed, including his.
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