Policing gender: gender-segregated restrooms

[Note: For this article, I will be using the pronoun "they" to describe singular individuals in order to recognize and honor those who struggle with gendered pronouns. Apologies for any grammar rules I may be breaking in order to do so.]

Very few children born in the late-1970s to mid-1980s can forget the epic teenage drama My So-Called Life, which aired on ABC for a single season from 1994 to 1995.  The show, featuring a young cast including Jared Leto and Claire Danes, was one of the most provocative of its time, addressing various issues including HIV/AIDS, homelessness, teenage alcohol and drug use, promiscuous sexual behavior, and the unique challenges faced by teenagers in the MTV-age.  What I remember it for most, however, is its depiction of an openly gay man of color, played by Wilson Cruz, named Rickie Vasquez.

The show features Rickie coming to terms with his sexual orientation and gender identity in a way that was remarkably fresh and realistic for its time.  And, most importantly for me, it was the first time I saw the effects of gender-segregated restrooms on those who do not easily identify with one gender or the other.  Rickie dressed most often in fairly flamboyant, although clearly masculine, attire. He wore an earring in his left ear.  The show depicted Rickie throughout the series applying and wearing eyeliner. His best friends were two girls, including the protagonist of the series, Angela Chase.

Instead of waiting outside of the girls restroom for his friends to do their make-up, gossip, or (most rarely it seems) use the facilities, he joined them.  Many times throughout the series, other female students using the restroom were not too comfortable with his presence. And yet, perhaps because he was attracted to other men, he was never officially banned or sanctioned by the school and his presence was seemingly tolerated.

Unfortunately, gender-segregated restrooms have made it difficult for people who do not squarely fit within a clearly female or clearly male gender presentation with a very serious problem: what do you do when you need to use the restroom, but you don't look like either of the polar sides of the gender binary for which restrooms are provided? What should be a basic biological, human function becomes an issue of safety.  If a gender non conforming person chooses the wrong restroom, they face violent resistance if someone in the room disagrees with their choice. This disagreement is often called the policing of gender. People who are uncomfortable with the gender presentation of someone else can use gender segregation as an excuse to assert that the person is somehow a deviant or criminal, or worse, violently express their disagreement with that gender presentation.

The Transgender Law Center (TLC) in San Francisco published a guide for activists in 2005 entitled "Peeing in Peace: A Resource Guide for Activists and Allies." In the guide, the TLC recognizes that this problem has not just been faced by those not conforming to gender norms. In the 1970s, when women were fighting to break down gender segregated employment opportunities, many women in traditionally-male professions had to fight for restrooms on job sites that only provided men's rooms. Similarly, people with disabilities struggled until the middle of the 1980s to achieve disabled-friendly restrooms.

While it seems somewhat petty to spend time pursuing gender-neutral restrooms, restroom access is essential to allow all people to participate in public life. Indeed, if a student feels unsafe in restrooms at school, they will likely skip, have attendance problems, and subsequently achieve low grades. On the employment front, if an employee is not allowed to use a restroom at work, they could be fired or quit because of their inability to use the restroom due to co-worker discomfort.

The "Peeing in Peace" guide accurately describes the search for a safe restroom as a very serious problem for many gender nonconforming people.  It writes,

Even in cities or towns that are generally considered good places to be transgender (like San Francisco or Los Angeles), many transgender people are harassed, beaten and questioned by authorities in both women’s and men’s rooms. In a 2002 survey conducted by the San Francisco Human Rights Commission, nearly 50% of respondents reported having been harassed or assaulted in a public bathroom. Because of this, many transgender people avoid public bathrooms altogether and can develop health problems as a result. This not only affects people who think of themselves as transgender, but also many others who express their gender in a non-stereotypical way but who may not identify as transgender (for instance, a masculine woman or an effeminate man). 

So why continue this harmful segregation? What are the justifications? Many people are visibly uncomfortable when presented with the suggestion that multi-stall restrooms be gender-desegregated. Indeed, several weeks ago when covering intermediate scrutiny in Constitutional Law II, when my professor queried why individuals believed gender segregated restrooms survived intermediate scrutiny, many of my (interestingly, predominantly male) classmates answered, "Because it does." When pressed further, most tried to cite health issues, the "messy," "unclean" nature of men in restrooms, or endangerment of women and children, as reasons that gender segregated restrooms would withstand a constitutional Equal Protection inquiry. Indeed, I found the reactions of my classmates to be very similar to those that were most likely voiced by white people when asked why restrooms should be segregated according to race.

The TLC argues that these justifications have more to do with social perceptions than they have to do with any real important governmental interest. Countering the safety argument, "Peeing in Peace" writes,

The truth is that the current bathroom situation does not adequately ensure women’s safety. Putting a sign that says “women” on the door of a bathroom does not stop people who want to harm women from entering. Thinking that a sign will create protection might actually increase the potential for violence in bathrooms because if someone did intend to assault a woman in a bathroom, they would certainly know where to look. In doing bathroom activism, it is important that we help people realize that something as symbolic as a sign on a door does not provide any real safety or protection. 

The current bathroom situation is not particularly safe for children either. Many opponents of bathroom activism have stated that making bathrooms safer for transgender people will make them less safe for children. However, gender-neutral bathrooms can actually be safer for children because parents or other caretakers would be able to accompany them to any public bathroom thus personally ensuring their safety.

Additionally, if health concerns were really a problem, unisex single-stall restrooms, or indeed, private restrooms within people's homes, would need to be gender segregated as well.

Many college campuses have chosen to make their multi-stall dorm restrooms gender neutral. In 2005, I visited my brother, who was then studying at Beloit College in Beloit, Wisconsin. His freshman dorm had entirely gender neutral restrooms, and I was pleasantly surprised by the fact that nothing seemed different when I walked out of a stall and washed my hands next to a man.

What we are left with, then, is a socially ingrained discomfort that persists in maintaining gender segregated public restrooms for entirely arbitrary reasons. What results is a landscape of hate and bigotry that prevents the most vulnerable in our society from even accessing and participating in public life.