Over the next few weeks I'll be talking about what happened after the hoopla. My thoughts on the news coverage, what's happening with the human rights complaint, why people are sending me hate mail for breastfeeding, and more. Check back often.
According to the Vancouver Sun, the store owner told mother Samantha Watt that “It was shocking to me, especially when she said, ‘I can do what I want,’” he alleged. “I told her it was a private space compared to a public space.”
It’s a commonly held opinion. In fact several people wrote to me to tell me that they think stores are private spaces and store owners should be able to do what they want.
They are wrong.
Now I could easily discuss the fine points of the private sphere and the public sphere, how they are changing, and what they mean for different groups in society. Or you could read this book.
But in this case, it would be a distraction. This is a legal matter, and the law is clear. Stores are public spaces.
I’m not a lawyer of course, but I can read the law just like anyone else.
Public vs Private in the US
For some reason, a lot of the letters came from the US, so let’s look at the law there.
In 1979, the California Supreme Court [107 Cal.App.4th 109] concluded that “a privately owned shopping center that attracts large numbers of people to congregate in order to shop and take advantage of other amenities offered by the shopping center is the functional equivalent of the traditional town center, which historically is a public forum where persons can exercise the right to free speech. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910-911 & fn. 5 [153 Cal.Rptr. 854, 592 P.2d 341]”
This was a case where people were handing out leaflets, and involved the exercise of free speech, but it doesn’t change the fact that the court ruled that a mall is a public space. Generally, if you invite the general public to congregate in your space, you make that space public, in the eyes of the law. And the public then has the same rights within that space as anywhere else in public. That includes the right to free speech, to congregate, and to not be discriminated against.
The public doesn’t have to own the space for it to be considered public, they just need to be given access to that space. And what store owner doesn’t give the public access to their store?
Public vs Private in BC
But that is in the US, what about in Canada?
In Canada, things are even easier to clarify, since many provinces have laws that specify that women can breastfeed in public, but also sometimes provide a list of examples of public spaces where they can breastfeed. BC is one of them.
The BC human right tribunal policy handbook says: “Entities that provide public services/facilities customarily available to the public also have a duty to accommodate lactating women”.
Then it documents some examples.
For those women who wish to breastfeed / express milk in public accommodation includes:
allowing mothers to breastfeed / express milk on public benches such as may be found in shopping malls, museums, hospitals, public parks, restaurants, etc.;
allowing mothers to breastfeed their babies while walking in stores, etc.; and
allowing mothers to breastfeed / express milk in the regular passenger areas on ferries or buses.
So instead of the American ‘privately owned spaces where the public is invited to congregate’ (not an exact quote) the BC law uses the language ‘Entities that provide public services/facilities customarily available to the public’.
You can find the exact language in article 8 of the BC Human Rights Code:
8. A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public,
So unless you prevent everyone from being in your store, you can’t prevent women from being there, just because they are breastfeeding. That means women get to breastfeed in stores in BC.
Public vs Private in Quebec
Unfortunately, the Quebec Human Rights Commission doesn’t publish a nice, easy-to-read document that sets everything out. That makes it difficult for women to know their rights, and more difficult for store owners to know their responsibilities before the law.
10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
15. No one may, through discrimination, inhibit the access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available there.
And there it is: a “commercial establishment”, in other words, a store, defined as a public place. A place, where women can breastfeed.
[Added April 29]
I noticed some visitors coming from other countries, so I wanted to clarify the situation in the UK and Australia.
Public vs Private in the UK
In October 2010, the Equality Act came into force. Part 2, Section 17(4) of the act specifically prohibits discrimination on the basis of breastfeeding. Part 3, Section 29 states that anyone that provides services to the public or a section of the public (like a store or cafe) cannot refuse services, or lower the standards of services and cannot harass individuals.
Public vs Private in Australia
According to the Australian Breastfeeding Association, there are laws that specifically protect women breastfeeding in public in Queensland, Tasmania and the Northern Territory. In Victoria, the Western Territory and the Australian Capital Territory laws prevent discrimination on the grounds of parenthood and/or sex that could be used to protect the rights of breastfeeding women.