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NEW VA Breastfeeding Law

By Kelly on June 30, 2015 in Breastfeeding Parenting with No Comments

EFFECTIVE JULY 1ST, 2015, NEW VIRGINIA LAW PROTECTS NURSING MOTHERS’ RIGHT TO BREASTFEED IN PUBLIC

By Pam Starsia, Managing Attorney at The Law Office of Pamela Starsia

Many mamas in Virginia may be surprised to learn that, up until now, state law did not protect a woman’s right to breastfeed her child in most public spaces. They would have good reason to be surprised—Virginia was one of only three states in the U.S. that didn’t protect a woman’s right to nurse in public places. (The other two shameful states are South Dakota and Idaho). Thankfully, due to the great work of breastfeeding advocates in the state, a new state law that takes effect July 1, 2015 will change that by explicitly protecting a woman’s right to nurse in public.

What was the old law?

Previously, Virginia law said that mothers had the right to nurse in public only on property that was “owned, leased or controlled by the state”. This meant that a woman had a protected right to breastfeed in a building or public space owned by the state, but she had no explicit legal protection for her right to nurse in privately-owned places that were otherwise open to the public—such as stores, restaurants, museums, gyms, and even private hospitals. While many wonderful private businesses in Virginia have been welcoming and accommodating to nursing mothers, there are also many that have shamed and scolded mothers for breastfeeding in public, and over the years mamas in Virginia have reported countless incidents of nursing in public only to be asked to cover up, nurse in a restroom, or leave the premises of privately-owned businesses, just for feeding their hungry babies.

What does the new law say?

The new law creates a new section of Title 32.1 (the “Health” Title of the Code of Virginia), Va. Code § 32.1-370, which expands the protections provided under the old law to include protection of a woman’s right to breastfeed in private places that are generally open to the public. Specifically, the law states that “[a] mother may breastfeed in any place where the mother is lawfully present…” This means that if a woman is legally allowed to be someplace—such as a restaurant, store, or gym—the law now explicitly protects her right to breastfeed there. This is a huge improvement over the old law.

Can the store/property owner require me to use a nursing cover or to nurse in a specific area of the property (e.g., restroom)?

No. If you are otherwise legally allowed to be somewhere, you are allowed to nurse your child there, without a cover. For example, if you are legally allowed to be sitting at a table in a restaurant, the manager cannot require you to use a cover or to nurse your baby in the bathroom. The words of the statute do not create any exception that allows the property owner to force you to use a cover or to nurse in the restroom—indeed, that would defeat the entire purpose of the law, which is to affirm a woman’s right to feed her baby wherever and whenever she needs to.

What are the penalties for violating the new law?

The new law does not create a specific new penalty for violations. This means that any violations are subject to the general penalty provisions of Title 32.1 (Va. Code § 32.1-27). Under § 32.1-27, a person who violates the new law would potentially be subject to the following penalties:

(1) Guilty of a Class 1 misdemeanor, which is punishable by a jail term of up to 12 months, a fine of up to $2,500, or both (see Va. Code § 18.2-11). Only the state or local prosecutor’s office can seek to charge a violator with a criminal misdemeanor violation of the law.

(2) Subject to a civil lawsuit, brought by the state Board or Commissioner of Health, in which they can be ordered to comply with the law.

(3) If they fail to obey a court order to comply with the law, the person could potentially be subject to a civil money penalty of up to $25,000 per violation. This civil penalty can only be sought in a lawsuit brought by the state Board or Commissioner of Health, and any penalty money is paid into the state general fund.

The law does not create a private right to file a lawsuit for women who are asked to cover up or to leave someplace when they are nursing. Instead, the law relies on state prosecutors and the Board of Health to enforce its provisions. Because of this, women should be aggressive in reporting violations to the local authorities and/or the Board of Health. The new law should also give women the knowledge that state law firmly protects their right to breastfeed in public. This will hopefully further empower nursing mamas, and give them added confidence when responding to nursing unfriendly situations.

What should I do if I am asked to cover up or leave an establishment while I am nursing?

If an establishment owner/manager/employee asks you to cover up, nurse in a restroom, or leave the establishment because you are nursing, I would recommend starting the conversation by saying something like:

“I don’t know if you’re aware of this, but state law in Virginia says that a mother has the right to breastfeed in public [without a cover] anywhere where she is legally allowed to be. It’s a new law that just went into effect on July 1, 2015. So you are actually breaking the law by asking me to leave/cover up while nursing.” If they do not back down from the issue immediately, tell them that, under the law, their conduct constitutes both a Class 1 misdemeanor and a violation of the state health code, and that you will have to report them to both the local police and the state Board of Health if they insist on violating the law. Make sure you are speaking with a manger or the highest-level authority employee in the establishment, and do your best to write down as much of the person’s name as you can under the circumstances. Also do your best to record the date, approximate time, and location of the incident, so that you can make a full report to the appropriate authorities if you choose to do so.

State breastfeeding advocates are working on a “Know Your Rights” card that you can carry with you as a quick reference guide to your rights and the penalties under the new law. In the meantime, feel free to print out a copy of this post (or bookmark it on your smartphone), and use it as a reference to educate anyone who may not be aware of their rights or obligations under the new law.

If you experience a violation of your rights under the new law, my law firm will be working on a pro bono (free) basis to help women respond to violations of the law and report violations to local authorities and/or the state Board of Health as appropriate. Please feel free to contact me to discuss your options for handling any violations or to ask questions by visiting: http://www.starsialaw.com/contact-us/

Pam Starsia is a lawyer and social justice advocate based in Charlottesville, and the Managing Attorney at The Law Office of Pamela Starsia (www.starsialaw.com). This blog post is for informational purposes only, and is not intended to be legal advice.

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