When Lotte Mies went topless at an indoor swimming pool in the Berlin district of Kaulsdorf last December, she was asked to either cover her chest or leave the pool. The 33-year-old activist had already called ahead to check with staff that she could go topless and was told it would not be a problem. But when she refused to cover up, the police were called and Mies was forced to leave.

"It was more than humiliating for me that day and it really wasn't nice to be treated like a second-class citizen on the basis of my gender and not to be able to decide for myself how to [present] my own body," Mies told DW.

"I thought about it and I came to the conclusion that: 'No, I don't want to ashamed of my breasts anymore, it's actually not in order,'" Mies told DW. "This permanent sexualization that we are exposed to, and it's not just about breasts, I just don't want to accept it anymore."

Mies filed a complaint with the ombudsman's office responsible for compliance with Berlin's Anti-Discrimination Act (LADG), a law that was introduced in the state of Berlin in June 2020, and is the first of its kind in Germany. The General Equal Treatment Act (AGG), which covers the whole of Germany, forbids discrimination in labor and civil law contexts. Berlin's Anti-Discrimination Act extends this existing law to guard against discrimination in the public sector.

The Berliner Bäderbetriebe (BBB), the capital's municipal swimming pool operator, never had a gender-specific dress code, only a general rule mandating "customary bathing attire" for both men and women which left it down to staff at each pool to interpret what this actually meant. Now, in response to the public outcry over Mies' case, the pool operator has issued a clarification to ensure that women can now go topless at public pools just the same as men.

The clarification simply states that: "Swimming 'topless' is equally permissible for all persons" and only the "primary sexual organs" need to covered. The German government's Federal Anti-Discrimination Agency classifies breasts, beards and body hair as "secondary sex characteristics." Primary sex characteristics are defined as those necessary for sexual reproduction, such as the penis, testicles, and vagina.

Doris Liebscher, the head of the ombudsman's office responsible for compliance with the Anti-Discrimination Act in Berlin, welcomed the clarification to the rules in the capital, saying the decision "establishes equal rights for all Berliners, whether male, female or non-binary."

The Lebreton case

This all comes after a similar case hit the headlines in the summer of 2021, when Gabrielle Lebreton went topless at a water park with her five-year-old son in the Berlin district of Treptow-Köpenick. When Lebreton refused to cover her chest, the police were called and she was forced to leave the park.

Lebreton decided to sue, in one of the first cases to be launched off the back of Berlin's Anti-Discrimination Act. She lost her case, with the district court (Landesgericht) ruling that women's breasts are different to men's and can therefore by subject to different regulations. Lebreton is currently in the process of appealing the decision at the Berlin Appellate Court (Kammergericht).

"Unfortunately, this idea is exactly where the discrimination of the female chest starts," Leonie Thum, the lawyer representing Lebreton, told DW. "The assumption that the sexualization of the female chest is somehow rooted in biology and therefore somehow mandatory, which isn't true. It's simply to overcome a social assumption that the law doesn't define as an adequate justification for discrimination of genders."

Thum argued that the ruling essentially subverted what the anti-discrimination law is for, as if "part of the public has an issue with something, that is always enough reason to justify discrimination."

After Lebreton was ordered to leave the water park in the summer of 2021, activists in Berlin founded the intersectional feminist alliance "Equal Breasts for All" ("Gleiche Brust für alle") which campaigns for the desexualization of the upper body in a similar vein to the "Free the Nipple" campaign in the US. Under the motto "No nipple is free until all nipples are free," campaigners cycled topless through Berlin to protest the hypocrisy of denying women the right to go topless in a city covered with adverts depicting "half-naked, sexualized and unrealistic images of bodies."

The "Free the Nipple" campaign went mainstream in 2013 after the release of the film of the same name. Using the hashtag #freethenipple, campaigners have argued that women should be allowed to appear topless in public in the same way as men, including on social media platforms, where images of women's breasts are regularly censored — from Renaissance paintings to photos of breastfeeding.

"Men don't have to hide their beards just because in puberty that signifies that they are ready to have sex, but for some reason with women's breasts that's the case," Thum says, adding that men have biological markers that signal puberty in the same way women do, the only difference being that they are not expected to hide them.

Another often overlooked aspect of the rules around topless bathing is the rights of transgender and non-binary people, Thum says: "If you have a gender regulation based on two genders, that is binary, then you will always discriminate against trans and non-binary people. There's no way around it and that's what happens all the time."

In August 2021, a non-binary topless swimmer was ordered to leave a public swimming pool in the German city of Göttingen in Lower Saxony. Following a campaign by the feminist alliance "Equal Breasts for All," the municipal authority last year introduced a pilot project to allow topless bathing for all genders on Saturdays and Sundays at four of its pools.

Germany's nude bathing tradition

Germany is not known for having a prudish attitude towards nudity, where fully naked bathers can be seen on beaches and in parks soaking up the sun even in the most conservative parts of the country. In fact, the country has a long tradition of nude public bathing as part of the "free body culture" ("Freikörperkultur", commonly referred to as "FKK"), a naturist movement that emerged in the late 19th century.

In an interview with Playboy in 2017, prominent Left Party politician Gregor Gysi, from the former East Germany, complained about the decline of "free body culture," which he blamed on the "pornographic gaze" of men from the West.

Since Berlin's municipal pool operator announced it would clarify its rules concerning topless bathing as a result of Lotte Mies' compliant, Mies has been subjected to a wave of misogynistic online abuse, ranging from derogatory comments about her appearance to rape threats. "Most of them are the classic victim-perpetrator role reversal, that I am somehow to blame if more [women] are raped now," Mies told DW.

Germany still lags behind other European countries when it comes to implementing anti-discrimination legislation long since enshrined in EU law, according to Thum: "I always thought it would be a straightforward process, that it would always develop to a more equal, free society and I think we are, but because of a lot of pushback it's much slower than you would think."