Creating Bathroom Access & a Gender Inclusive Society

Bathroom & Inclusion

Bathroom & Inclusion

TRANSGENDER PEOPLE face both subtle and overt forms of bias and discrimination in a number of areas including healthcare, housing, education, and employment. They report high rates of homelessness that are linked to high estimates of discrimination in attaining housing. Among these issues, bathroom access has received outside attention, particularly because opposition to transgender equality has been successful in using hateful and inaccurate tropes about transgender and gender nonconforming individuals. For civil rights advocates, however, fighting for equal access to restrooms according to one’s gender identity is a major issue precisely because it underlies discrimination in a variety of different public and private contexts. Bathroom access, in the words of one legal scholar, “manifests as a subset of a larger issue: the ability to secure and hold employment or use places of public accommodation without experiencing discrimination or abuse.”1

Over a dozen states have considered (and in North Carolina, with HB 2, implemented) bills that would force individuals to use bathroom facilities that are limited to their biological sex at birth. These laws are frequently justified under the guise of protection for women from sexual assault, though researchers have found that there is no evidence that safety and privacy is negatively impacted when restroom use is based on gender identity. While many civil rights groups have launched challenges to regressive bills, researchers argue more proactive visions of bathroom equality are needed to overcome the varied and drastic forms of discrimination faced by transgender populations. As Haas Institute LGBTQ Citizenship faculty member Sonia Katyal argues, the law has failed to keep pace with the inclusion of burgeoning and diverse transgender and gender non-conforming populations.2

This policy brief reviews literature on the challenges transgender and gender-nonconforming individuals face in overcoming discrimination and harassment, with particular focus on the role of conditioning restroom access as a key site of social exclusion. Legal challenges to the regressive restroom policy argue that some solutions—such as mandating transgender individuals use a separate single-user facility—do little to address the indignities of unequal access. The brief outlines solutions to address the problem, focusing especially on data collection of gender identity and access needs, as well as strategies in the designing and planning of gender inclusive, rather than gender neutral, bathroom facilities. These strategies will allow policymakers to enable restroom inclusion while addressing concerns about safety, especially focusing on the need to recognize the intersectional needs and concerns bathrooms hold in society. 

Figure 1, a legislation map diagram, indicates on a map with different colors which states mandate gender neutrality for single stall restrooms, states with protection for bathroom access according to gender identity, and which states considered legislation that would restrict access to multiuser restrooms.

  • 1. Tobias Barrington Wolff, “Civil Rights Reform and the Body,” Harvard Law & Policy Review 6 (2012): 205.
  • 2. Sonia Katyal. "The Numerus Clausus of Sex" University of Chicago Law Review Vol. 84 Iss. 1 (2017) p. 389