In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.

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Ethical Inquiry: May 2012

bathroom

 

The Ethics of Gender-Segregated Bathrooms

According to the Massachusetts Commission Against Discrimination, it is illegal to deny someone a job because of age, gender, race, sexual orientation and a number of other criteria. However, segregation remains widely accepted in a very basic realm of daily life: the bathroom. In this setting, people of different genders are treated differently.

Is this fair? In this “Ethical Inquiry” we examine gender-segregated bathrooms in terms of social policy in the United States. We place a particular focus on the context of colleges and universities, where alternative approaches are more widespread than perhaps anywhere else in American society.

Some notes on terminology

The World Health Organization defines "sex" as referring to “the biological and physiological characteristics that define men and women,” and “gender” as referring to “the socially constructed roles, behaviours, activities, and attributes that a given society considers appropriate for men and women.”

These definitions are problematic for this Inquiry, since they limit the discussion of sex and gender to only two categories, but this Inquiry will adhere to the basic distinction which is commonly drawn: the physical (sex) versus the social (gender). Bathrooms are generally segregated by gender, rather than sex, since it is the performative, social aspect of gender upon which people are judged when entering a bathroom.

The sources used in this Inquiry alternately refer to “unisex,” “gender-neutral” and “gender-inclusive” bathrooms. Within the LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Questioning, Intersex, Androgynous, Allies) community there is much debate over these terms, and the preferred terminology is constantly evolving. While the connotations these terms have may differ, their meaning is the same in the sources in this Inquiry: bathrooms that anyone and everyone can use.

Where are Bathrooms Changing, and How?

While family restrooms and changing rooms in malls and athletic facilities are on the rise, and used by some transgender people – gender-neutral, or perhaps the aptly named gender-inclusive, bathrooms have gained more traction on college campuses than in other institutions.

In 2010 the New York Times reported that an increasing number of colleges and universities were including what the article terms “unisex” bathrooms in dormitories, and explained some of the ways this is handled at various schools.

The Transgender Law and Policy Institute states that more than 150 colleges and universities have gender-neutral bathrooms on-campus currently, and the numbers keep growing.

Many of the universities that have created gender-neutral bathrooms did so in response to transgender students’ complaints of harassment or discrimination.

Schools differ in the way they address these concerns: some leave it up to students to vote on whether or not they want their residential bathrooms to be gender-specific or coed, whereas other schools maintain gender-specific bathrooms and simply add additional unisex bathrooms.

At Brandeis University students are given the opportunity to vote on whether or not the bathrooms on their floor will be gender-neutral, at the beginning of each year.

In addition, Brandeis’s housing policy is one of the most progressive: it includes a “gender neutral” housing option in which students are allowed to share “multiple-occupancy bedroom[s], regardless of the students’ sex or gender.” The University’s Department of Community Living states that gender-neutral housing “supports the University’s non-discrimination policy and fully commits to the principles of social justice with respect to sexual orientation, sex, gender, and gender identity.”

Brandeis implemented this policy for several reasons: to provide options for “students who may identify as transgender or are questioning their gender identity or do not wish to prescribe to gender classifications,” to “decrease heteronormative assumptions regarding housing assignments,” and to supply options for “students who are uncomfortable with a same-sex roommate or do not wish to have a same-sex roommate.

In a Brandeis Hoot student newspaper article on the school’s gender-neutral housing policy, multiple students were quoted in support of gender-neutral housing, and the director of Student Rights and Community Affairs as well as the senior director of Community Living told the newspaper that they had not received any complaints in regards to the policy since it was instituted.

At some schools, temporary bathroom changes have been made. Such an initiative at The College of New Jersey was reported by the student newspaper The Signal (“Bathrooms opened to all genders for Transgender Awareness Week”).

The question of whether or not to build more gender-neutral bathrooms on Harvard University’s campus arose in January of 2011, after the Cambridge City Council passed a policy order resolution which requires the City Manager to develop an ordinance on gender-neutral bathrooms, and which is still pending. Although Harvard has over 90 gender-neutral bathrooms already, students still came out in passionate support for and against this resolution, and the impact it could have on their school.

Harvard’s housing policy sheds some light on the issue: the College requires single-gender living arrangements, although the Office of Student Life “permit[s] mixed-gender rooming groups in certain circumstances, such as to accommodate students with a gender-based need (i.e., transgender students).” Gender-neutral housing is assigned on a case by case basis, and “to date, exceptions have been limited to those suites where bedroom door locks have been installed by the University, and where the bedroom occupants are of the same gender.”

However, the Harvard Office of Student Life recently started a pilot program with six Harvard Houses “wherein private bedrooms and locks on bedroom doors will no longer be mandatory,” and “approval of such [gender-neutral housing] requests will no longer depend on the configuration of the room/suite.” This program is still in place for the 2012-13 school year, and a decision as to whether it will result in a change to Harvard’s housing policy has not yet been announced.

Why Gender-Neutral or Gender-Inclusive Bathrooms?

While gender-segregated bathrooms may seem to be an eternal part of American society, the first state law mandating that workplace toilet facilities be separated by sex was enacted in 1887, in Massachusetts. The practice of separating bathrooms based on race and disability has caused a great deal of controversy, while segregating based on gender has become the accepted standard. However, with the rise of the feminist and LGBTQIA rights movements, these commonly held practices have been called into question.

Less Discriminatory

In “The Apartheid of Sex: A Manifesto on the Freedom of Gender,” Martine Rothblatt, a transgender lawyer, draws the parallel between race and gender segregation. Rothblatt asserts, “As with race, restroom segregation reinforces social discrimination. It took laws to eliminate "whites only" lavatories. It took laws to mandate handicapped toilets. And it is taking laws to redress inadequate bathroom facilities for women.” 

Avoids Marginalization

One of the most often-cited arguments in favor of gender neutral bathrooms is that on a societal level, adhering to a binary system with only two choices (male or female) “others” people who do not fit into or subscribe to this dichotomy, with consequences that extend beyond the immediate discomfort of having to choose which bathroom to use.

This group of marginalized people includes people who identify as transgender, transsexual or intersex, and people who do not identify within the confines of these categories.

In “Coming Out of the Water Closet: The Case Against Sex Segregated Bathrooms,” (Texas Journal of Women and the Law) Alex More discusses the extent to which having male and female bathrooms excludes people. More writes “Sex segregated restrooms force people to choose "male" or "female"—those who refuse to accept the dichotomy become defined out of existence. People who do not identify with their socially assigned sexual category represent the remainder of sexual division—the leftovers, sexuality's refuse.”

At colleges and universities, the New York Times reported in 2010, “[s]ome unisex bathrooms are a matter of outdated architecture, a holdover from the era of single-sex dorms with one “gang” bathroom a floor. Others are an extension of “gender neutrality” in housing, the trend to accommodate gay and transsexual students who are uncomfortable living with a roommate of the same biological sex. The University of Pennsylvania, Oberlin, Wesleyan, Swarthmore and Stanford allow coed roommates; starting in the fall, Yale seniors and all but freshmen at Williams will have the option.”

Safer

A concern for safety motivates people on both sides of this debate.

In the article “Embodiment, Elimination, and the Role of Toilets in Struggles for Social Justice,” Judith Plaskow, a professor of religious studies at Manhattan College, raises the issue of how to reconcile the “need of transgender persons for safe and accessible restrooms” with some people, primarily women’s, desire “for the privacy and safety they associate with women-only space.”

At Harvard, the Co-Chair of the Harvard College Queer Students and Allies wrote in an opinion piece titled “Safe Bathrooms for All” that a Crimson editorial arguing against gender-neutral bathrooms on safety and modesty grounds ignored “that gender-neutral bathrooms are a matter of dignity and safety for those in our community who don’t conform to traditional gender norms,” and “…treated unsubstantiated risks of sexual harassment and assault against women as though they were facts, without offering any evidence for their claims.”

Why Not?

On the other side of the issue are people who believe that the creation of gender-neutral bathrooms would make bathrooms more dangerous, and make people feel uncomfortable in terms of privacy and modesty.

A Concern for Safety…But Safety for Whom?

One of the biggest concerns raised by people who are against the implementation of gender-neutral bathrooms is safety.

When Harvard University was considering building gender-neutral bathrooms, the editorial board of the Harvard Crimson student newspaper argued against the creation of gender-neutral bathrooms on-campus. Much of the editorial “Rethinking Privacy” focused on safety: “Gender-neutral bathrooms could provide opportunities for verbal harassment and even unwanted attention that perhaps could be avoided in gender-specific bathrooms. We understand that assault and harassment can occur anywhere; we simply believe that gender-neutral bathrooms would make it easier.”

Privacy and Modesty Concerns

While the potential for increased danger for bathroom users is a major deterrent for people in favor of maintaining sex segregated bathrooms, The Crimson raises another issue in its editorial advocating against the addition of gender-neutral bathrooms, that of modesty, a concern often brought up by religious groups as well.

The Crimson asserts that although a small minority of students may feel discomfort at having to use sex segregated bathrooms, many students would also feel discomfort if forced to use gender-neutral bathrooms.

The president of the Massachusetts Family Institute, which describes itself as “a non-partisan public policy organization dedicated to strengthening families in Massachusetts,” and as “dedicated to strengthening the family and affirming the Judeo-Christian values upon which it is based,” told the Crimson, gender-neutral bathrooms pose a threat to the modesty of all people.

The MFI also opposed the Massachusetts legislation “An Act Relative to Transgender Equal Rights,” termed the “Bathroom Bill” by its opposition. When the Act was passed in 2011, Massachusetts joined “15 other states and the District of Columbia in extending protections to its transgender residents in employment, housing, education, credit, and hate crimes” – but it passed without the so-called “bathroom bill” provision that would have made it illegal to discriminate against people on the basis of their gender identity within the public accommodations sphere.

How? A Gender-Neutral Option? Or Gender-Neutral for All?

The question of whether it is more ethical to deconstruct the gender/sex binary and mandate that all bathrooms be open to everyone or if it is more ethical to adhere to the concerns of people who advocate for our current system of gender-segregated bathrooms remains controversial.

Most universities and public facilities debating this issue are choosing to take a middle ground, installing single-stall gender-neutral bathrooms while maintaining the gender-segregated bathrooms they already have.

Terry Kogan, a professor at the University of Utah’s S.J. Quinney College of Law argues that the male-female binary is so entrenched in our society that, rather than attempting to take “male” and “female” designations away from all bathrooms, the best option is to create separate gender-neutral bathrooms labeled “Other.”

On the other hand, Martine Rothblatt thinks “the best way...to help cleanse society of sexual apartheid, is to pass laws that mandate secure, reasonably clean, unisex restrooms for all.” Furthermore, Rothblatt believes that in order for people to be able to use gender-neutral bathrooms without bearing a social stigma, all bathrooms must be gender-neutral, and that it is in everyone’s best interests to break down this binary system built into our society.

Final Thoughts

As societies and institutions increasingly engage in a larger discussion on sexuality, gender identity and sexual orientation, and adapt to changing norms with regard to acceptable – and protected – identities outside of the sex and gender binary, issues such as gender neutral bathrooms will likely continue to be a part of the conversation. In contexts beyond colleges and universities, other aspects of this issue might play a larger role as well.

Have suggestions for additional content that looks at the ethical issues surrounding the ethics of advocacy? Let us know:

This installment of "Ethical Inquiry" was researched and written by Elly Kalfus ’13.