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It Takes a Village

Kathryn Wellen
Capitol Hill, Washington, DC
From: New Beginnings, Vol. 29 No. 5-6, 2009, pp. 60-64

I am fortunate to live in a very supportive community for parents and children in Washington, DC. We exchange advice, used children's items, meals, and just about everything else with astonishing regularity, and we enjoy many wonderful parks and child-friendly facilities. But even here my baby and I have been ostracized for nursing, and one person in particular helped me put a stop to the harassment.

Micah Salb, an attorney practicing employment law, made a huge difference to the breastfeeding experiences of people across Washington, DC. Working with government representatives, he drafted legislation protecting the rights of women and children to breastfeed anywhere they are legally entitled to be. The law lists common obstacles toward breastfeeding as well as the many health benefits for mother and child. It also specifically states that the Council finds the public encouragement of breastfeeding to be in accordance with the promotion of family values. The bill passed into law in 2007.*

When my baby and I were harassed by city employees for nursing at a public swimming pool, I was very angry, but I calmly told the teacher who bothered us that my child and I were fully within our legal rights to breastfeed there. I asked her to deal with whoever was complaining and to leave us alone. She wouldn't back down so I acquiesced on that day. Thereafter I contacted Micah, explained what had happened, asked about the law, and his opinion about a nurse-in. He cited the law and confirmed that my baby and I were indeed within our legal rights, notwithstanding however much of the breast was exposed during or incidental to nursing, and he offered his help if I wanted to organize a nurse-in. I was still angry but my baby enjoys going to the pool more than any other member of the family and I didn't want to ruin it for her. So instead of organizing a protest or filing a complaint with the Office of Human Rights, I bought a nursing swimsuit to try to compromise.

I was wearing a nursing swimsuit and had a towel over my baby the third time it happened. One of the pool employees asked me to go to the back room or to cover my shoulders (even though I already had wide swimsuit straps on my shoulders -- go figure!) I refused so he said, "Then I'm afraid I'm going to have to ask you to leave." I replied that he would have to call the police in order to get us to leave. He did.

By the time the police arrived we had finished our swim, my baby was with her dad in the men's locker room and I was with my older child in the women's locker room. The officer told me that she had already talked to the management and explained to them that she could not ask me to stop nursing, but then she told me that I could be banned from the pool. When I asked her how I could be banned from a public facility for doing something permissible by law, she actually compared nursing mothers to "crack heads" and drunkards!

I was livid and contacted Micah again. He told me that this was ridiculous and that I should escalate the matter, and that he was more than happy to help. I decided that I would try being cordial one more time, but knowing that Micah was there ready to help if need be made a huge difference to me. And, as it turned out, the work that he had already done on behalf of nursing moms and nurslings throughout the city was enough. I looked up the law for which Micah had already provided the reference and found that it was more supportive than I ever dared hope. The next week I gave a copy to the pool management and nobody has bothered us since. Had I needed legal help, I'm sure Micah would have provided it; but he, and all the other people who took an interest in breastfeeding and wrote to the Council in support of the bill, already had ensured the right to breastfeed. It made a world of difference.

** District of Columbia Official Code (to read the full text of the Code visit www.government.westlaw.com)

Part I. Breastfeeding Mothers.

§ 2-1402.81. Findings and purposes.

(a) The Council finds that: (1) The encouragement of a public acceptance of breastfeeding is consistent with the promotion of family values between a mother and her child and no mother should be made to feel incriminated or socially ostracized for breastfeeding her child.

(2) Breastfeeding a baby constitutes a basic act of nurturing to which every mother and child has a right and which should be encouraged in the interests of maternal and child health.

§ 2-1402.82. Rights of breastfeeding mothers.

(c)(1) A woman shall have the right to breastfeed her child in any location, public or private, where she has the right to be with her child, without respect to whether the mother's breast or any part of it is uncovered during or incidental to the breastfeeding of her child.

(2) Not withstanding any other provision of District of Columbia law governing indecent exposure or the definition of the private or intimate parts of a female person, including that portion of the breast that is below the top of the areola, a woman shall have the right to breastfeed in accordance with this section.

 


 

Interview of Micah Salb, Esq., the attorney who drafted DC's law protecting nursing mothers, with former LLL Leader Teri Sierra

TS: What made you interested in protecting the rights of nursing mothers?

MS: I had heard anecdotes at work and around town from friends and clients, but I became aware of the breadth of the problem when I heard people talking about some high profile incidents, including a woman who got in trouble for breastfeeding on an airplane. I thought that this idea -- that women shouldn't breastfeed -- was a terrible anachronism, bringing us back to the 1950s when it was thought that science did better than nature and that women's bodies should be hidden away. It is also an issue of economic justice because nursing is a very economical way to provide the best possible nutrition for your child.

TS: What obstacles did you have to overcome in order to be able to write this legislation and what factors did you consider that needed to be included?

MS: The most significant factor is the law's incredibly powerful enforcement mechanism. One aspect of this law that makes it so powerful is that it is an amendment to the District of Columbia Human Rights Act. I don't know if there is any more fundamental human right than the right to eat, and when we're talking about a baby eating, it is even more fundamental. The District of Columbia Human Rights Act is very powerful. It permits private lawsuits and there is no cap on damages, which provides a great disincentive to violating the law. We really had to fight to make this law an amendment to the DC Human Rights Act.

But the biggest challenge to getting this law passed was that nursing in public wasn't really considered a problem. We heard from one legislator after another, "Oh come on, what's the big deal? It's not really a problem." Fortunately, the most frequent sin that this law has to redress is the improper request by businesses that breastfeeding patrons cover up. But because legislators had not known about the number of women who received that sort of request, not to mention the other challenges of breastfeeding, the problem appeared to be minor and so hard to get the legislative process focused on it.

TS: When you were writing the law, what factors did you think needed to be included? For example, did you think it was important to explain the parts of the breast?

MS: I started by reviewing laws in other jurisdictions and cherry picking the good stuff, to try to make a strong bill. I sent an email to Jim Graham, saying, literally, "there oughta be a law." He agreed. Councilmember Graham and his office became major partners in this. Working with him and his staff, we were able to talk about different provisions of the legislation. So, for example, how specific did we want to be in describing how much of the nipple may be exposed without it being considered indecent. We decided that we should not be overly specific -- though we did have to amend our language when we realized that it could have been interpreted to say that breastfeeding naked was permissible, and that wasn't anybody's intention. I got a big kick out of the absurdity that people make a fuss about exposure when most nursing mothers cover up and are very modest. I almost wish nursing mothers didn't cover up as much as they do, as a way of making a statement that it is not indecent.

Some jurisdictions provide only that breastfeeding is not public indecency, but our law is all encompassing. It not only makes clear that breastfeeding is not public indecency, but it also permits a woman to breastfeed anywhere where she is entitled otherwise to be. And it requires employers to provide work breaks and clean, safe spaces for women to pump while at work.

TS: What, if anything, makes the District of Columbia different for passing legislation with such strong language?

MS: I actually think it has more to do with the people who live in the District, who participated in this process by making phone calls and writing letters. Many people came out and supported this cause. Members of the DC Urban Moms listserve and the Mothers on the Hill listserves were especially active, as well as the Breastfeeding Center of Washington. *

I was surprised, though, by the lack of enthusiasm from certain quarters. For example the local employment lawyers' association was not supportive, which I think is unfortunate, to put it mildly. And the legislative staffer in Councilmember Schwartz's office, who was first assigned to this bill, seemed to have remarkable resistance. He just kept fighting me on it, to the point that I had to write a letter to the Councilmember asking that someone else be appointed. To her credit she put another person on it and was extremely supportive of it. In fact, it was her committee that held the hearings on the bill and she was a big fan.

So, in a nutshell, we started with a strong Human Rghts Act, which gave us a good base to start from. The idea of using the Human Rights Act as a...

TS: launching board?

MS: Yes, a launching board, really worked out well for us. And the reason it worked out so well was because so many people were involved. There is something bizarre about having to say it is not illegal to do this thing that is about as normal as you get. The problem is that we have so fetishized breasts and sex that any exposure seems shocking.

TS: Do you think that DC's law can serve as a model for other jurisdictions?

MS: You know I have looked at legislation in many other jurisdictions and I think obviously you'll find many commonalities. I do think that the structure we've got both in terms of the employment accommodation and the public access is helpful. Considering that damages are permissible, it addresses workplaces as well as places of public accommodation and you can't get in trouble for public indecency, it does what it should do very well. It could serve as an excellent model in other jurisdictions.

TS: I'm so grateful to you for doing this. I nursed my children in the late 1960s and early 70s for years and I was considered a total freak by everyone in my vicinity. I was a young mom, I didn't know what I was doing and if I had had to make formula I don't think that I could have handled it.

MS: I think they've made it a little easier.

TS: And I couldn't have done it without a lot of support from La Leche League.

MS: I hear a lot of people say that.

TS: What is your advice to people elsewhere who would like to get a similar law passed in their jurisdiction?

MS: Make it personal. Find a receptive member of the legislature or city council and make a personal request. This is a hard idea to say no to. And get yourself tied in with your allies -- parenting groups, local listserves, and the like. Put your ear to the ground before you get started, if you can, by asking on those listserves for folks to come forward if they have had any challenges that this law would fix, so that you have a response to the people who deny that any problem exists. And don't forget the people at WIC and at foodbanks and in government agencies that address neonatal health -- those folks came out loudly in support of DC's law and were thrilled that people in the community were pushing for something of such importance to their missions.

 

*When email is addressed to a listserv mailing list, it is automatically broadcast to everyone on the list. Usually, a listserve is based on some topic or commonality and the messages are transmitted as email and are available only to individuals on the list.

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