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

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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... (see full summary)



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 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. Protection

Although we have come a long way since the days when people believed that men intrinsically possessed superior anatomy to women, many still justify distinguishing between men and women on the basis of biological differences. Often the distinctions we make between men and women on the basis of biology end up suggesting women's inferiority, such as women's exclusion from job opportunities because of pregnancy, or the military's combat exclusion which keeps women off the front line under the rationale that women are biologically weaker than men. Many feminists have explicitly or implicitly agreed that a biological basis for sexual distinction can exist, but this concedes too much. As Anne FaustoSterling describes the problem, "[i]n ceding the territory of physical sex, feminists left themselves open to renewed attack on the grounds of biological difference. . . . Our bodies are too complex to provide clear-cut answers about sexual difference."3

Fausto-Sterling recounts the story of Maria Patino, Spain's top woman hurdler, who failed her sex test before the 1988 Olympics. As it turned out, despite having all the phenotypic characteristics of a woman, Patino also had a Y chromosome.4 She had a condition called androgen insensitivity, which caused her cells to ignore the testosterone in her body.5 After two and a half years of examinations and effort, Patino rejoined the Spanish Olympic squad, and became the first woman to ever successfully challenge sex testing for female athletes.6

Patiño's story suggests that we ought not take for granted the common wisdom of biological sexual difference, or the cultural assumptions that flow from it. 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."8 Physical control over women's bodies thus becomes necessary for maximizing the health of the population, and treating women as inferior does not come off as oppressive, rather it is for women's own good.

2. Cleanliness

Kogan suggests that the requirement of sex separation melded into considerations of sanitation, comparable to cleanliness and ventilation.9 Discussing the history of hygienic discourse at the time, Dominique Laporte observes:

Not one of these revolutionary heroes doubted for an instant that

his invention of a separator, a ventilation system, a new form of toilet bowl, or a mobile urinal would transform the future of humanity. . . . [T]he hygienists cherished their product. . . . [T]hey promoted a frenzied utilitarianism regarding physiological functions.10

Just as with the protection justification, hygiene becomes another way to rationalize utilitarian population control. Foucault explains that "[t]he emphasis on the body should undoubtedly be linked to the process of growth and establishment of bourgeois hegemony .... [Publications about] body hygiene . . . attest to the correlation of . . . the body and sex to a type of 'racism.'"11 Foucault here refers to racism in the primordial sense of belief in intrinsic difference - proletarian factory workers inherently lacked hygiene, thus they endangered the health of the population, necessitating state intervention. Hygiene emerges as an unquestionable rationale for control of workers' bodies and ultimately women in particular.12

3. Privacy

Regulators perceived it as "a violation of Victorian modesty for any part of a woman's anatomy to be subjected to public scrutiny while she performs intimate bodily functions."13 Thematic of the need to control women specifically, "[t]he literature paints a vision of male workers defiling a woman's virtue by illicitly sneaking peeks at her lower extremities while she is using the water closet."14 This perspective contributes to cultural assumptions about the predatory nature of masculinity and the docile, victimized nature of women.

Though we might think of using the bathroom as a compartmentalized and non-political aspect of our daily lives, the regulation of public bathroom use demonstrates instead that bathrooms inform beliefs about the nature of women's bodies and social control in general. As Laporte argues:

The privatization of waste, a process whose universality is not a historical given, made it possible for the smell of shit to be bearable within the family setting, home to the closest social ties. ... It is apparent that socialization is regularly subverted by the politics of waste. To touch, even lightly, on the relationship of a subject to his shit, is to modify not only that subject's relationship to the totality of his body, but his very relationship to the world and those representations that he constructs of his situation in society.15

The privacy concern with public bathroom use draws state regulation into our basic biological functions - our bodies cannot operate in a properly civilized manner without careful supervision. Submission to the norms of bathroom use therefore becomes essential to inclusion in the social contract.

4. Morality

Lastly, Kogan articulates that:

[T]he legal requirement that workplace toilet facilities be separated by sex was a last-ditch effort by Victorian regulators to bolster the moribund separate spheres ideology and to recapture the lost world of the early nineteenth century. If the realities of the late nineteenth century made it impracticable to force women back into the home, then the law would mandate that spaces in the dangerous public realm be set aside to serve as protective havens for women, as surrogate "homes away from home."16


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