Since law school, I have been a fan of the hypothetical. I’m also a big fan of December. My baby was due on Christmas Day. Until he was born, my husband and I affectionately referred to him as “Jesus Chuck” (after Jesus of Nazareth and another celebrated man, Chuck Norris).

So here’s a hypothetical for you: if Jesus had been born in Texas in 2012, would Mary have the right to breastfeed him in public? At her job? If Mary were unlawfully denied her right to breastfeed, would she have a cause of action, i.e., a right to sue for money damages or other relief?

This blog will address Mary’s right to breastfeed in public. For the answers to the second two questions, stay tuned to Texas Business Matters.

Breastfeeding in Public

Chapter 165 of the Texas Health and Safety Code addresses breastfeeding in public under Texas law. Section 165.002  provides: “A mother is entitled to breast-feed her baby in any location in which the mother is authorized to be.” Does this mean a mother may nurse her baby at the grocery store? The mall? The movie theater? Her child’s school? The park?

My reading of the plain language of the statute is a big YES. If the mother is authorized to be there, i.e., unless she is trespassing, she may nurse her baby there, and the owner cannot make any rules that prohibit or limit her right to nurse.

Some places interpret the law to mean that they may require the mother to nurse in a private room, set apart from where she is otherwise authorized to be. Austin ISD, for example, currently requires mothers to nurse in a private room. This policy prevents a mother from nursing her baby in the school lobby while waiting to pick up an older child, or while watching her older child in the school play.

Eanes ISD, on the other hand, has a policy that follows the language of the law. Specifically, “the choice of location is at the mother’s discretion. Mothers are allowed to nurse at any Eanes ISD location at which they are authorized to be.”

Similarly, at the University of Texas, “Our students, faculty, staff and visitors who are nursing mothers may use our Lactation/Quiet rooms, for comfort and privacy, if needed. However, they are not required to use them and they may also choose to breastfeed wherever the general public is authorized.”

I can personally attest to the nursing policies of Matt’s Famous El Rancho, Deep Eddy, Barton Springs, and Big Stacy Pool, which are: anything goes.

The courts have yet to determine whether Austin ISD’s policy is legal. In my opinion, it is not. Letting mothers breastfeed only in a separate room is like saying that restaurants may let non-whites eat only in a separate room. It contradicts the purpose of the law, which is: equal treatment.

And to the business who attempts to come between a mother and her hungry child, I say: be warned. Like Austin ISD, you may have to face something even more hair-raising than a partially-naked breast: the ire of nursing mothers.