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posted February 15, 2005

The Breastfeeding Crisis of 2005, La Leche League

Dialogue with La Leche League

Cover of 1998 Dufferin Rink staff guide.
Drawing by Jane LowBeer

[ed. Britt Pegan is a La Leche League (LLL) leader]

Dear Ms. Mason,

I have been composing this e-mail to you in my head since I heard about the breastfeeding incident at Dufferin Grove. I have been finally moved to actually write it as this situation drags on with no resolution in sight. I understand that you are likely feeling attacked and vilified, especially by those who don't know you or Dufferin Grove. It is not my intent to add to that feeling.

Though I am a former resident of Toronto, I don't know you nor am I familiar with Dufferin Grove. What I do know about you and the park comes from browsing the website and reading the e-mails and articles about this situation. While doing so, I came across the fact that you are a former LLL Leader. As an LLL Leader myself, I have to admit that my first reaction was shock. Obviously you are a woman who is well educated about breastfeeding and who supports breastfeeding wholeheartedly and I am finding it hard to reconcile that with your current actions.

My purpose in writing you is to ask you to consider what effects your actions are having on the breastfeeding advocacy movement today and how you are helping make breastfeeding an accepted norm in our society. As a former LLL Leader, I know you must have helped many women breastfeed and, just as importantly, helped them feel comfortable breastfeeding. The advancements in breastfeeding advocacy that you helped achieve while an LLL Leader are being undone by your current actions. Please remember the new moms who may be feeling unsure about breastfeeding in their living room, never mind in public. Remember the moms whose husbands don't want them to do "that" in front of anyone. Remember the scores of women whose breastfeeding relationship is jeopardized or ruined by misinformation. This "breastfeeding crisis" as you refer to it on your website is only adding to the negative image of breastfeeding in many people's minds and is perpetuating the idea that you really can't breastfeed in public and I can't believe that that is something you'd be comfortable with.

Ms. Mason, please issue an apology to Erika Ross. No matter what your personal feelings are on whether she was showing too much skin, it is very clear that you made an error in asking her to cover up or move. It is clear from the e-mails that have come in from across North America in support of Erika Ross, it is clear from the press release issued by LLL and it is clear from our Human Rights Code - a woman's right to breastfeed is paramount, no matter where she is or who else is around.

While you are naturally on the defensive given that your actions are being called into such public question, I trust that you will recognize that an apology is needed and will continue to lead by example in your community by taking responsibility for your mistake.

With respect,

Britt Pegan

Dear Ms.Pegan, I cannot apologize to Erika Ross because I do not agree with her position, and that of the other folks, who believe that it's solely a mother's own decision how much to expose when she nurses her baby, all the way to the right to take her shirt off completely, if that is what she wishes. (Erika Ross did not take her shirt right off but she seems to feel that the right is there and must be defended.) I believe the social world is always there and cannot be made to disappear by a pure ideology of rights. In the very specific situation of our rink house, babies are very often being nursed, and it's wonderful. It's particularly wonderful for me to see because I have worked pretty hard to attract families back to the rink. There is no other rink or even park like ours and it may be hard for you to imagine. But my campaign has always been to include as many ages/ cultures/ class backgrounds as possible, and in our situation that is not possible if women take off too much when they are breastfeeding, and others therefore come to experience the community clubhouse/rink house as mainly a woman's club.

In the end, the proof of the pudding is in the eating, as my mother-in-law says. The nursing babies are here in great numbers, and so are the all the other folks. Thank you for your compassion toward other mothers and your kind message to me.

Dear Ms. Mason,

Thanks very much for your reply. I appreciate you taking the time.

While I disagree with your position, I do understand that your personal opinion is that a woman should nurse discreetly in certain situations. I also understand that your intent was not malicious when you spoke to Erika Ross. What I am struggling to understand is why you seem to feel that your personal opinion supersedes the Human Rights Code in this case. As a community leader in a diverse ethnic community, I feel certain that you would not ask a Jewish man to remove his Yarmulke or ask a gay couple to stop holding hands as someone might find them offensive. The Human Rights Code clearly states that your actions are equal to the above and that is why I continue to feel that an apology is owed to Erika Ross. I do agree with your assertion that the mix of ages and cultures at the park require a "dance" of sorts to accommodate everyone. Where we part ways is in my belief that some issues (such as breastfeeding) simply cannot be compromised in this dance.

I cannot begin to imagine what the outcome of this will be. I want to believe that it will end up doing good for both breastfeeding and Dufferin Grove but without an apology from you, I sense that closure and peace for the breastfeeding advocates of Canada and for Dufferin Grove will be hard to come by.


Britt Pegan

Dear Ms.Pegan,

Two things -- we are not really talking about my "personal opinion" only. In a busy week we have between 2000-2500 visits to the rink. There are a lot of points of view to take into account. The park staff of 9 people, and I also, have a lot of negotiating to do, as well as working hard at all the things we do to make the place be a pleasant place for users. The park staff are of different ages, gender, and ethnic background and they are as amazed and puzzled as I am, about this strange situation we are facing. So are many of the rink users. There is another whole world out there in the actual park that's hardly even connected with this e-world of judgments about human rights violations.

Second: A point of clarification: the human rights code itself does not mention breastfeeding as you will see if you read through it. The quote you have seen mentioned over and over again is from the Human Rights Commission guidelines, which do not have the force of law. (Look it up on the web site and you'll see the difference.) There is currently no case law that deals with a situation like this one, where breastfeeding is so clearly welcomed, but where the issue is the degree of disrobing. If the degree of disrobing is the actual issue here, then we are invoking the Gwen Jacobs case. That judgement (1996) said that a women can take her shirt off anyplace a man can take his shirt off. But here's the sticking point: Men are not allowed to disrobe in the community room at our rink, same as women, same reason -- mixed use and cross-cultural sensitivity. If men want to change their clothes and need to take their shirts/hockey pants off, they pull the curtain, same as women who need to take part or all of their shirt off to nurse a baby. Neither of them stands in the middle of the community room and does that.

Dear Ms. Mason,

Obviously, we are both firmly entrenched in our positions and there will be no meeting of the minds! I do want to suggest that you contact a lawyer familiar with breastfeeding and the law (as I have) before you continue in this vein. While you are quite correct that breastfeeding is not mentioned by name in the Human Rights Code that does not mean that it is not protected by it. Breastfeeding is protected on the grounds of "sex" and "family status" and the degree of undress and the Gwen Jacobs case has nothing to do with it.

I do not think we have seen the end of this and I know that my intention (and that of those I've been in touch with) is not to harm Dufferin Grove in any way. My belief remains that you made an error in judgement and owe Erika Ross an apology and should retract your breastfeeding policy. Your assertion that it shouldn't be "solely a mother's own decision how much to expose when she nurses her baby" is a dangerous one, in my mind, as it opens up the possibility of a whole range of other breastfeeding decisions that shouldn't be up to the mother. We have come so far with regards to breastfeeding acceptance and I would hate to see us start down that slippery slope of intolerance and censorship.

If I were still living in Toronto, I would absolutely have taken you up on your offer to discuss this over tea but this e-mail discussion is the closest I can get. As I see that you have posted my original e-mail on your website, I ask that you add my name to it and please include my name should any of my subsequent e-mails end up on your site. I do not wish to be anonymous in this debate.

With a continued wish for a positive resolution to this situation,

Britt Pegan


January 22, 2004 In response to a recent incident at a Toronto ice rink, involving a mother breastfeeding her young baby in a family change room, La Leche League Canada Executive Director Teresa Pitman points out: "Every mother should be able to breastfeed her child anywhere she is comfortable and has a right to be."

She points out that the mother's right to breastfeed in public is protected under Human Rights legislation. All public facilities and private facilities which are open to the public - parks, recreation centres, restaurants and stores - should support and accommodate breastfeeding families.

Pitman explains that breastfeeding mothers need to feel confident about their right to breastfeed anytime and anywhere. When mothers delay breastfeeding their babies, because they are in public, they risk plugged ducts, breast infections and decreasing milk supply, she says.

"Hungry babies, as most of us know, are not patient. Breastfeeding does not stop being best for baby and mother in the presence of other people," Pitman adds. "And a crying, hungry baby is more upsetting to most people than a nursing baby."

At La Leche League Canada (LLLC) meetings, women discuss breastfeeding in many types of situations and surroundings. For local Group information call LLLC's Breastfeeding Referral Line at 1-800-665-4324.</p> <p>Contact Kimberley MacKenzie National Development ManagerLa Leche League Canada (705) 792-6809 cell: (705) 718-1004

[ed:Jutta's response to receiving the above press release], Thank you for sending me this, Ms.Mackenzie. I understand the desire of LLL to support all mothers who wish to breastfeed, and I honour the work of the association that I was part of for many years, as participant and then as a leader (and sometimes a speaker at LLL conferences).

My joy at the wonderful range of mothers and children whom I met during my association with LLL contributed to the project I took on as my children grew up -- trying to make diverse public spaces work well for families. I began with an "indoor park" and then moved on to do similar work at a rather lonely fourteen-acre outdoor park in my neighbourhood. The neighborhood has an unusually high concentration of high schools and it also has more than forty language groups represented there.

In the eleven years during which I have given my work to this park, it has been my privilege to see the park gradually fill with a great quilt of families, youth, and old people, and many cheerful forms of social life -- music, community suppers, school picnics, theatre, pick-up sports, and campfires.

One of the things I have learned along the way is that cross-cultural, cross-class, and cross-age feelings and perceptions must be handled with care. Otherwise one group will tend to swamp out others. This is particularly true in the park's only confined space -- our park's winter rink house. Many rink users shy away from public undress. Consequently we do not permit hockey players, of either gender, to change in the open area of the rink house.

But the rink is no longer only for hockey players and skaters -- it has also developed into a kind of community clubhouse. A lot goes on there. At this rink, mothers nurse their babies everywhere the action is, and it's wonderful to see. I have never had a complaint from anyone about a baby nursing -- what would be the problem? I have, however, seen families and young people who came to skate, leave unhappily when the nursing mother has forgotten that in that small space, observers could not easily remove themselves -- if she was more unclothed than usual.

Families include more than babies -- they grow to be children, and then teenagers. It's my wish to take into account all the different ages at the park, with their various outlooks, and different cultures too. This is a delicate dance. The "dance" needs an assumption of good will between people as they gradually get to know one another and understand one another's cultures.

That assumption of good will is usually there, but sometimes it falters. My attempt to remind a young mother unknown to me of the sensitivities of others around her in the rink house led her to notify the city authorities of a human rights violation the very next morning. My speaking to her had disturbed her greatly. This began a little e-mail storm, of a kind I never yet experienced in my work at the park. One of the mother's friends from another city alerted the media, hence an article in NOW magazine. Subsequent to that, our park web site has received a number of very critical e-mails -- some from as far away as Newfoundland and South Carolina -- calling for my removal from the park.

When something like this happens, there is a great temptation to despair, to say -- everything ends in conflict sooner or later, why even bother? However, it may be that there are some peacemakers among us, who can help out here. It would be a great shame if old LLL mothers and young LLL mothers are divided needlessly.

Jutta Mason

From Jutta Mason to La Leche League Canada Executive Director Teresa Pitman

Hello Teresa,

You write:

"If we let other people determine what is an appropriate way to breastfeed, there is a risk of breastfeeding women being harrassed by unsupportive people, and ending up in arguments over what is discreet enough. So the Human Rights code says it is the mother who decides how discreet or indiscreet she wants to be, and where she wants to nurse."

1. The Human Rights Code versus guidelines on their web site: The Human Rights Code says nothing at all about breastfeeding. What you are quoting is the web site, which has on it some guidelines, written by an unknown person (who could have been a lawyer or a summer law intern). Some of these guidelines have the force of law and some don't. The first part of what's on the web site does have case law supporting it:

"You have rights as a nursing mother. For example, you have the right to breastfeed a child in a public area. No one should prevent you from nursing your child simply because you are in a public area."

[True. BCHRC 1997 case - Poirier, although this case was decided solely re: a woman's right to breast-feed in the context of her employment. But hallelujah! It's close enough, and it seems that the courts will generally uphold that every woman has the right to breastfeed, wherever she is with her baby and whenever the baby wants to nurse. There are still going to be exceptions -- she can't bf in a concert hall or a bar because she may not gain entry with a baby, and she can't bf in the middle of the road, but she can bf in most places]

However, as far as we can discover, the second part: They should not ask you to 'cover up', disturb you, or ask you to move to another area that is more 'discreet' has not been supported by any Human Rights Commission or any court in Canada:

So your statement "But it seems to me that the law still allows women to breastfeed indiscreetly if they want to" appears to be incorrect.

2. The charter right to freedom of speech: There are some cautions in the actual Code, including, very importantly, about the charter right to freedom of speech.Rather than go through all the applicable parts of the Code or the case law, I'll just send you the link to that section of our web site: Breastfeeding and Human Rights, 2005.

Since you're the head of LLL I'm sure you would want to your knowledge of the law about breastfeeding to be as accurate as possible. The park friends who know the law, who have been doing this research at our end, have been pretty diligent in their case law searches. However, If LLL has a law source who has a different interpretation based on a case that we don't know about, our park folks would obviously be very interested in her/his documentation.

Now, even if there is no jurisprudence supporting the mother's right to breastfeed topless or naked or in any other style of her choosing, in public, that doesn't mean that such a case couldn't be considered by the courts in future. But for now, all that's there is a sentence on the web site, not in the Code, and not having the force of law.

3. The confusion of language on the Human Rights Commission's web site: We are perturbed enough by what happened at the rink house that we are preparing a brief for the OHRC to ask them to clarify the confusion that such words as should not ask you to 'cover up', disturb you, or ask you to move to another area that is more 'discreet' have caused in our case. Many, many people in our neighbourhood are particularly troubled by the idea that a person could be subject to a civil suit for asking or disturbing -- amazingly broad and vague categories of lawbreaking. With such language, in the hypothetical case of a topless woman breastfeeding in our small rink house in the presence of people who feel very unhappy about male or female nudity (quite a few people in our mixed neighbourhood), even screening such a person has been interpreted by the City as illegal. There are common religious beliefs and cultural attitudes that would force some other rink house users to leave the building in a case of such a state of undress -- their "right to assemble" in the community clubhouse would therefore also be affected.

4. Does the Human Rights Code intend to make arguments about different views illegal? In your letter, you say that "if we let other people determine what is an appropriate way to breastfeed, there is a risk of breastfeeding women being harrassed by unsupportive people, and ending up in arguments over what is discreet enough."

But I think that arguments/ discussions are the stuff of civil society -- real differences of viewpoint which are regarded as legitimate but which must still find a meeting point (even if it's just agreeing to disagree for a time). I hope that neither the Code nor the case law are intended to stop people from arguing their positions. I think the principle that a baby can breastfeed whenever and wherever it's hungry is a wonderful principle, strong enough and clear enough that it can fend off any requirement like "cover up with a blanket" or "go breastfeed in the linen closet." At the same time, there is an emphasis in human rights case law on "reasonableness," a good old English word that evokes "good sense." As far as I can see, even breastfeeding a baby does not exempt a person from the requirement of reasonableness. In my view, Erika Ross did not have enough good sense on that Friday night, she was not sufficiently reasonable in forgetting or discounting the sensibilities of other rink users. If she had wanted to argue with my view, either then or later, and to tell me that I was the one whose good sense was deficient, she could have done so with great passion. I am very easy to find at the park, I am used to being yelled at sometimes, and I know how to listen too. (And so far I have never threatened to take someone to court for what they say to me, even if it's very hurtful.) But Erika Ross didn't even want to talk to me that night, and by the next morning she had written to other park friends and the city councillor and accused me of having committed an "illegal act of gender harassment."

5. There is no category of "gender harassment" in any part of the code, it's just a made-up term. What's at issue here is not "harassment" but "discrimination on the grounds of sex or family status." But merely asking someone to move (e.g. to a bench at the side of the room) has not been interpreted by the courts as being the same as trying to stop them from bf: Breastfeeding Case Law

6. The Gwen Jacob case: You refer to a woman's right to be topless. As far as I know, the Gwen Jacob decision gives a woman the right to be topless in any place where a man can be topless, without being subject to arrest for indecency. There is nothing in that decision that prevents anyone from telling a woman anything about her state of undress. They just can't have her arrested. Good. Nobody, man or woman, should be arrested at our rink house or elsewhere for taking off their shirt.

However, there is equally nothing that prevents any public facility from making a rule about proper attire. So you can't take off your shirt or shoes at many public facilities (restaurants, concert halls, etc.). In our clubhouse you have to take off your shoes to put your skates on but you can't walk around barefoot (safety -- you could get cut if somebody steps on your foot with a skate on) and you can't sit there with your shirt off. You wrote: "Would you have been concerned if a man stood up in the middle of the room and lifted up his shirt, revealing a bare chest (or, since she had a bra on, an undershirt)?"

The answer is, I would have gone over and told the guy that if he was about to change, he ought to go into the privacy of the washroom. Ditto if a woman wanted to change her top (leaving on an undershirt or a bra) in order to put on hockey gear. They could have told me to take a hike, and I could have told them to stuff it, but neither of us would have been able to take the other to the Human Rights Commission. (And nobody, thankfully, would even think of it.) So the Gwen Jacob case is not relevant here.

7. "Give-and-take": In the Manitoba breastfeeding case that actually deals with a non-employee breastfeeding in public space (see Breastfeeding Case Law) the adjudicator wrote that "the duty to accommodate requires reasonableness and something of a give-and-take on the part of all those who are affected by a given situation". It is, as has been described by one experienced counsel, "a dance of reasonableness". If it would unsettle a hypothetical topless breastfeeding woman too much to be asked to put her shirt back on, another option would be to not say anything but just to move our screen over, or draw our curtain, thereby separating the rooms and giving people who don't want to be observing topless breastfeeding, half the room. That was the proposal in the newsletter. But if I understand you (and the City of Toronto, so far)rightly, you feel that even that degree of disturbance is the thin edge of the wedge and therefore illegal. I would suggest that such an interpretation of the Code -- that no "give" at all is required of the breastfeeding woman -- does not square with the Manitoba case. It also, I think, puts you into a position that makes LLL less credible for being so extreme.

That winds up my current sense of the law. When I first saw the excerpts from the actual Code from our law friends, I was comforted that it seems to have more than personal choices in its angle of vision -- the individual, yes, but within a community too.

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