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Texas Law Supports Women’s Right to Breastfeed in Public

Texas Law Supports Women’s Right to Breastfeed in Public

Recently, the United States surprised many by opposing a World Health Assembly resolution to promote breastfeeding as preferable to baby formula substitutes. A U.S. Department of Health and Human Services spokesman told the New York Times earlier this month that the position was taken to be considerate of women who are unable to breastfeed.

The episode underscores how sensitive the subject is for any government or business, for that matter. In Texas and other places around the country, women have protested after being asked to cover up their infants while breastfeeding to shield their breasts from the view of anyone else present. Breastfeeding advocates contend they should not be required to cover their babies, which could make an infant feel overheated, or hide a natural function of parenting.

Is this latter issue settled in Texas? The short answer is yes. A woman can breastfeed anywhere in Texas she is authorized to be, and a woman exposing her breasts is not indecent exposure under Texas law. Texas law establishing this “right to breast-feed” includes a legislative finding that is decidedly pro-breastfeeding: “The legislature finds that breast-feeding a baby is an important and basic act of nurture that must be encouraged in the interests of maternal and child health and family values. In compliance with the breast-feeding promotion program established under the federal Child Nutrition Act of 1966 (42 U.S.C. Section 1771 et seq.), the legislature recognizes breast-feeding as the best method of infant nutrition.”

Does it matter where the breastfeeding takes place, e.g., a restaurant, store, office, park or a government facility? The long answer is no because Texas law broadly provides for the practice.

As of 2015 in Texas, there is no legal restriction on breastfeeding anywhere in public. Specifically, Section 165.002 of the Texas Health and Safety Code states that “a mother is entitled to breastfeed her baby in any location in which the mother is authorized to be.”

Furthermore, Section 21.08 of the Texas Penal Code, which criminalizes “indecent exposure,” does not include the exposure of breasts in the definition of the offense. Therefore, no peace officer or public employee should detain, accost, or otherwise prohibit any woman from breastfeeding in public for any reason at any time.

In addition, there are certain safeguards for women who wish to breastfeed in the workplace. Section 7 of the Fair Labor Standards Act requires all employers to provide a reasonable break time for an employee to express breast milk for one year after a child’s birth, including a place other than a bathroom that is shielded from view and free from intrusion from co-workers and the public.

In addition, Chapter 619 of the Texas Government Code provides that an employee of a public employer (including a city) is entitled to express breast milk at the workplace and that the public employer must develop a written policy concerning the expression of breast milk by its employees. The policy must state that the employer supports the practice of expressing breast milk and shall make reasonable accommodations for the needs of employees who express breast milk. In addition, the employer may not discriminate against any employee for asserting her rights to breast feed or express breast milk as set forth in the statute.

“The legislature recognizes a mother’s responsibility to both her job and her child when she returns to work and acknowledges that a woman’s choice to breast-feed benefits the family, the employer, and society,” says Sec. 165.031. of the Texas Health and Safety Code. In other words, Texas mothers should not be interfered with when nursing their babies in public spaces.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.

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