Bathrooms and Social Inclusion
RESTROOM ACCESS has played a central role in many significant civil rights movements. Scholars point to the use of fears of the mixing of different bodies in public as a persistent means to undermine social equality causes, from racial and disability equality, to the contemporary othering of the transgendered body. As with public pools and beaches, resistance to desegregation of bathrooms figured prominently in struggles for equal access to public accommodation for African Americans.8 Fears around diverse bathroom use speak to larger visions of society as it serves as a site for the regulation of social inclusion. Efforts to overcome unequal access facing transgender individuals can simultaneously address intersectional needs in restroom access by moving beyond the presumptions embedded in sex segregated restrooms.
Fear of “othered” bodies is enabled not just by social stigma, but by a history of assumptions—one frequently reified by proponents of bathroom bills— about the need for separate bathroom facilities and discriminatory notions of sex. Regulations for sex segregation in bathrooms emerged in relation to industrial-era labor laws “aimed at protecting the vulnerable, weaker bodies of women workers” as they entered the workforce.9 At their foundation, sorted toilet facilities solidified cultural notions of the need for segregation according to gender, race, as well as physical ability (indeed, the need for sex segregation often collapsed assumptions of gender and physical ability). Drawing on the tactics of the civil rights movement, in 1977 the disability rights movement staged sit-ins of government offices across the country to demand enforcement of accessibility laws. A lack of consistent bathroom access figured as central to their protests. While a powerful critique of ableism in built facilities, disability activists did not challenge sex segregation. In fact, the 1990 American with Disabilities Act had explicit provisions against accomodations to “transvestite” and “transexual” persons seeking disability protection, reinforcing fear of "gender fraud" and "intermingling." Scholars argue that disability critiques of the able-bodied individual and transgender demands for greater inclusion are both necessary to undo the exclusions cemented in the normative binary restroom coupling.10 Separate facilities carry a legacy of efforts to segregate by race, class, and physical ability that are solidified into the built environment and pose an enduring challenge to efforts to enable gender inclusion.
Transgender populations reflect a high level of diversity along the lines of race, class and physical ability, pointing to the need for institutions to understand the varied needs of users through community-supported data collection and research. Many Haas Institute LGBTQ Citizenship scholars remain critical of the use of policy to solidify a stable concept of queer identity that overlooks multiple identities and experiences. Moving beyond unsubstantiated fears of trans bodies, policymakers and courts should focus on creating inclusionary policies that ensure equal public access and dignity while working to allow self-definition of identity and identity-based discrimination remedies. Reliance on stereotypes has material implications for trans rights, as well as for women who in the laws are portrayed as passive victims of sexual assault. A large number of groups face persecution by the law based on stereotypes, creating fears among many different groups of being “misclassified.”
Haas Institute LGBTQ research cluster member Russell K. Robinson and David M. Frost argue that laws such as HB2 function through stereotypes—such as unsubstantiated fears of assault by transwomen—with negative implications for many different groups to define their own identity expression. These laws are one example of how the law hampers social change and the need to move beyond inflexible categorization to allow individuals to define their own needs.11 As in health policies that treat gay and bisexual men as a threat, despite LGBT advocacy by the Obama administration, queer advocates can still rely on “overbroad generalizations to make judgements about people that are likely to perpetuate historical patterns of discrimination.”12 These representations can hold negative implications for those outside of these identity groups: namely trans women of color who are statistically most likely to experience sexual violence. Change agents need to recognize intersectionality and “interrelatedness of homophobia, biphobia, transphobia, hetereosexism and cisgenderism.”13 Institutions should work to understand how overlapping identity experiences can lead to unequal access as well as heighten negative health outcomes.
As detailed below, data collection allows institutions to understand the needs of populations, rather than rely on the assumptions prescribed by the binary sex segregated facilities. LGBTQ research cluster member Juana María Rodriguez argues for attention to intersectional needs, (such as bisexual woman of color who face specific health challenges) creating the need to statistically understand health risk in a more complex way. While it is in the interest of lawmakers to err in the direction of self-definition, drawing on the experiences of those petitioning for access, policymakers must craft remedies that address the inequalities and physical harms caused by segregated facilities. The next section will outline strategies for data collection and architectural design and planning, recommending that in both areas, institutions work to enable nuanced understandings of gender. While self-definition is important, it is also incumbent on institutions to seek practical remedies to address inequality, including the construction of gender identities that allow restroom remedies.
- 8. Wolff 218-220.
- 9. Kogan 1214.
- 10. David Serlin argues that restrooms for people with disabilities are often gendered in a way which echoes the idea of the dependent female subject, noting that in at least one instance women’s and disabled restrooms were lumped together. Serlin in Harvey Molotch and Lauren Noren, eds., Toilet: Public Restrooms and the Politics of Sharing (New York: New York University Press, 2010) 180
- 11. Katyal 2017
- 12. Russell K. Robinson and David M. Frost, “The Afterlife of Homophobia,” (forthcoming) 21.
- 13. Robinson and Frost 74