Property Rights

What Utah’s Breastfeeding Laws Do (and Do Not) Say

This past week, a nursing mother was told to leave a Layton business because she was nursing. The woman claims that the establishment “broke the law” and that she “knows her rights,” and for that reason called a police officer to back her up. Facing pressure, the company issued a statement which reads, in part: “We fully respect and support the rights of women to breastfeed in public as supported by Utah law.”

What does Utah law actually say about breastfeeding? (Hint: the woman is wrong, and the company is right—sort of.)

There are only a handful of laws dealing with breastfeeding in Utah. Section 17-15-25 states that county governments may not prohibit breastfeeding “in any location where [the woman] otherwise may rightfully be…” This is not a statutorily recognized right, but rather a prohibition against county governments banning the action in places where nursing mothers have the right to be. Section 10-8-41 has the same reference, but to boards of commissioners and city councils.

Nursing mothers do not have the right to be on another person’s property. They have the right to be on their own property, or on public property (think parks, government offices, sidewalks, etc.) As such, this statute does not confer nor recognize any right to nurse in a business where the owner objects.

Sections 76-10-1229.5 and 76-9-702(3) make clear that breastfeeding—even with an exposed breast—does not constitute a lewd act or indecent exposure, as an exemption against the laws that otherwise criminalize a woman who exposes her breasts. Both of these laws also constrain breastfeeding to only those locations “where the woman otherwise may rightfully be.”

Earlier this year, the legislature passed House Bill 105, which adds breastfeeding to the list of conditions (including race, color, sex, religion, etc.) for which an employer may not discriminate against an employee or candidate for employment. House Bill 242 also passed, which requires government entities (but not private businesses) to provide breaks and private rooms to mothers who need to nurse or pump. Neither of these new laws apply in this situation.

The nursing mother also stated, “I’m filing a discrimation [sic] lawsuit right now!! I know my rights and the laws!” The discrimination code just cited offers her no legal standing to sue, as she is not an employee of the business she was at. However, Utah does have a public accommodation law, Section 13-7-3, that prohibits business owners from discriminating against patrons “on the basis of race, color, sex, religion, ancestry or national origin.” Breastfeeding, as you can see, is not in that list.

The company involved in this case referred to the “rights of women to breastfeed in public as supported by Utah law.” This is true, provided we constrain the definition of “public” to mean “public property,” as envisioned in the statutory references to locations “where the woman otherwise may rightfully be.” Unfortunately, as a result of the “public” accommodations law, as well as misguided public opinion, many people believe that “public” means anything other than one’s residential property—that any business is publicly controlled, and therefore unable to exercise property rights and prohibit certain people or actions to which they object.

With the high prevalence of young mothers in Utah, it is no surprise that breastfeeding advocates are generally well organized, and stories like this set fire to social media. For all the discussion of “rights” and “law,” though, it’s important to actually address what is and is not a Utah statute, rather than vaguely assuming that such discrimination is a violation of the law.