LHBTI+ rights and swimwear

Question

In much of the western world, decency laws require women to wear swimwear that covers their breasts; for men there is no such requirement.

In jurisdictions that recognize individuals' self-identification -- such as transsexuals (in various degree of transition), non-binary and intersex persons -- how do these laws apply?

Must a man, who has just started to transition into a female, wear female swimwear eventhough he is still flat-chested? Can a woman, who feels that she is actually a man, take off het bikini top and expose her breasts?

Answer 1

new-south-wales

Your assumption that males can and females can’t is invalid

The law has not been decided.

The law on obscene exposure is found in Section 5 of the Summary Offences Act 1988 (NSW), which states a “person shall not, in or within view of a public place or school, wilfully and obscenely expose his or her person”.

This has so far been interpreted by the courts to mean the male or female genitals - transition status is irrelevant here. It is an open question if it includes buttocks or breasts.

Anecdotally, it is not uncommon for people of all sexes on beaches to expose their breasts, although woman who do so are in the minority.

Discrimination

Assuming exposing the chest is not illegal, any dress code imposed by the owner of a beach or pool to which the public has access, would likely need to be non-discriminatory to comply with State and Federal anti-discrimination law.

I am unaware of any case law on point but analogous situations on school uniforms (which are ubiquitous in Australia) are that it is not discriminatory to have boys and girls uniforms so long as each student can choose which to wear.

Answer 2

In the US, the question only comes up in Arizona and Louisiana. ARS 13-1402(A) says that "A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether the other person, as a reasonable person, would be offended or alarmed by the act", and LA Rev Stat §14:106 "The crime of obscenity is the intentional: (1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive...".

The size of the breast is thus immaterial. In Arizona, the question is whether the exposure would offend or alarm a reasonable person, and in Louisiana, the question is whether the exposure had the intent of arousing sexual desire, or appealed to prurient interest or is patently offensive. Furthermore, an unsettled question is whether a person legally qualifies as a female. It is, however, correct to conclude that a statutory male can lewdly or patently offensively display his nipple(s) without suffering legal repercussions. In neither state is there a statutory definition of "female" as applicable to criminal law.

Discrimination based on sex is widely prohibited in the US, so there are very few opportunities to discover whether a person's gender self-identification is legally recognized, and from what I can tell, there are no test cases in Arizona or Louisiana whereby one can find out whether those states accept gender self-identification.