Gender-inclusive bathrooms: how pandemic-inspired design imperatives and the reasoning of recent federal court decisions make rejecting sex-separated facilities more possible

• Author: Susan Etta Keller
• Position: Professor of Law, Western State College of Law. J.D., Harvard Law School
• Pages: 35-52

GENDER-INCLUSIVE BATHROOMS: HOW PANDEMIC-

INSPIRED DESIGN IMPERATIVES AND THE REASONING OF

RECENT FEDERAL COURT DECISIONS MAKE REJECTING

SEX-SEPARATED FACILITIES MORE POSSIBLE

SUSAN ETTA KELLER*

ABSTRACT

This article suggests that the moment may be right to rethink the societal

need for sex-separated bathrooms, and to consider the harmful ways in which

they perpetuate a problematic gender binary. Architectural innovations for pub-

lic restroom design, inspired by the need to increase social distancing during

the pandemic, align well with designs that have already been proposed for gen-

der-inclusive bathrooms. At the same time, recent federal cases have confronted

the tortured logic of those insisting on policing the gender binary that sex-sepa-

rated bathrooms represent. The responses in these decisions, which uphold the

rights of transgender students to have access to the bathrooms that align with

their gender identity, are shown to undermine the logic of the gender binary in

general and the rationale for sex-separated facilities in particular.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

II. CASES CHALLENGING SCHOOL BATHROOM POLICIES THAT RESTRICT

ACCESS BY TRANSGENDER STUDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 41

A. GAVIN GRIMM LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

B. A.H. V. MINERSVILLE (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

C. WHITAKER V. KENOSHA (2017). . . . . . . . . . . . . . . . . . . . . . . . . . . 45

D. OTHER RECENT CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

III. CASES CHALLENGING INCLUSIVE SCHOOL BATHROOM POLICIES . . . . . . . . 48

A. HARASSMENT CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

B. PRIVACY CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

I. INTRODUCTION

When “nature” calls in public, we are continuously reminded of the gender bi-

nary. The gender binary asserts that there are only two genders into which all peo-

ple can be easily categorized; it asserts that the failure of some to conform to

* Professor of Law, Western State College of Law. J.D., Harvard Law School. Many thanks to

Ruthann Robson, Kathy Stanchi, and other participants in the 2020 Feminist Legal Theory Summer

Series for helpful comments on an early draft. © 2021 Susan Etta Keller.

35

these categories is not a problem with the categories but a problem with the non-

conforming individual. While this normative assertion is reinforced in many set-

tings, it is invariably associated in our minds with the urge to pee. When, say, we

exit an airplane and look for the needed restroom, what we are looking for is the

iconic gendered pair: the unclothed male figure and his triangle-skirted female

partner. When we find the location these two friends signify, we are careful to

part ways appropriately. Indeed, relieving oneself is currently so strongly associ-

ated with sex segregation that even a unisex toilet is typically designated by these

male and female icons side by side.

Like the urge that occasions this binary search, the division into two genders is

assumed to arise naturally. This assumption forms what sociologists Suzanne

Kessler and Wendy McKenna call the “natural attitude.” The “natural attitude,”

as they use the term, is an unquestioned assumption governing our everyday lives

“that every human being is either a male or a female.”

1

While the two restroom

symbols are differentiated by their clothing, we mostly understand that clothing

is not the basis for the differentiation. The woman in slacks still heads for the

skirted icon, while the man in a kilt knows that the unkilted male figure is his des-

tination.

2

But clothing is not entirely beside the point, because one of the ways in

which the gender binary is policed is by an expectation that clothing matches and

reveals an underlying reality about gender.

3

It is when the sartorial appearance of

an individual does not match the expectations of the viewer about the individual’s

gender that cognitive dissonance can ensue. The result of such dissonance can be

punitive measures against the nonconforming individual, but the result can also

be the promulgation of incoherent rationales that create opportunities to question

the underlying assumptions of the natural attitude.

The gender binary and the natural attitude cause harm most obviously to those

whose gender identity varies from the expectations created. These victims

include both those who embrace a gender identity opposite from what the natural

attitude assumes is appropriate, and those whose gender presentation resists easy

categorization under one of the sides of the binary. In addition, the continuous

reinforcement of the gender binary also harms those whose identification and pre-

sentation do not as obviously diverge. For other members of society, the subtle

policing of behavior and appearance and the shame attached to errors of presenta-

tion or direction (finding oneself in the “wrong” bathroom) detract from a fuller

1. SUZANNE KESSLER & WENDY MCKENNA, GENDER: AN ETHNOMETHODOLOGICAL

APPROACH 121 (1978).

2. But see many humorous memes playing off of this disconnect. E.g., Meanwhile, in Scotland Funny

Scottish Kilt Joke Postcard, ZAZZLE: POSTCARDS, https://www.zazzle.com/meanwhile_in_scotland_

funny_scottish_kilt_joke_postcard-239640100474084472 (last visited Oct. 18, 2021).

3. See Ruth Colker, Public Restrooms: Flipping the Default Rules, 78 OHIO ST. L.J. 145, 146–79

(2017).

36 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXIII:35