Coming Out of the Water Closet: The Case Against Sex Segregated Bathrooms

Summary


The Emergence of Sex Segregated Bathrooms A. Early Statutes Sex segregated bathrooms did not arise naturally - starting in 1887, state laws began requiring them.1 After constructing a survey of state statutes and related literature, law professor Terry Kogan concluded that four rationales justify legally mandating sex segregated bathrooms: protection, sanitation, privacy, and morality.2 Looking at each of these rationales in detail helps to show the cultural baggage that sex segregated bathrooms have carried since their inception. 1. In the context of the protection justification, lawmakers operated under the assumption that women needed a protective haven for their vulnerable bodies, legitimizing state regulation and control of women's bodies.7 We see here, as French theorist Michel Foucault puts it, an intensification of the body, a problematization of health and its operational terms ... a question of techniques for maximizing life. ... a means of social control and political subjugation.

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Coming Out of the Water Closet: The Case Against Sex Segregated Bathrooms

Introduction

We cannot separate the cultural and biological definitions of man and woman; they make up two sides of the same coin. Still, we try to force a rigid sexual distinction, ostensibly for practical purposes. Sex segregated bathrooms appear as perhaps the most innocuous places where we distinguish between men and women, but as this Note suggests, segregating bathrooms by sex does a disservice by stratifying harmful assumptions about sexual difference.

Part I of this Note will examine the legal history of sex segregated bathrooms, reviewing the justifications for early 20th century state statutes and codes requiring sex segregated bathrooms. This discussion serves as a segue to an examination of the biological definition of sex and its underlying assumptions. Drawing from a range of feminist scholars, Part I will look at the way that our cultural and scientific knowledge has been constructed to support a particular view of sexual differentiation, a view that impedes any serious aspirations of thwarting destructive gender discrimination and violence.

Part II of this note will look at contemporary consequences of sex segregated bathrooms, focusing on the 10th Circuit's very recent decision in Etsitty v. Utah Transit Authority in which it held that an employer may permissibly fire a transsexual employee without offending Title VII or the Equal Protection Clause on the basis that the transsexual employee may incur liability when using public restrooms while on the job. Particular attention will be paid to the rationales used by the Etsitty court, including analysis of the court's rejection of the plaintiffs argument, based on the Price Waterhouse case discussed below, that she was fired for failing to conform to stereotypical gender norms. Part II will finish with a discussion of alternatives offered by critical feminist perspectives, and will argue that unisex bathrooms best remedy the problems caused by sex segregated bathrooms.

Part I: The Emergence of Sex Segregated Bathrooms

A. Early Statutes

Sex segregated bathrooms did not arise natu...

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