Without a Pot: Bathrooms, Non-Ideal Bodies, and the Law
University of Connecticut - School of Law
August 13, 2010
There are some needs that are universal; bathroom access is one of them. Still, there are many people who find their needs for bathroom access routinely ignored. Bathrooms are not trivial spaces in society or within the law. The ability to pass through a bathroom door at will and enjoy safe, dignified, and adequate facilities is often a measure of full economic and social citizenship, an ability that distinguishes the “haves” from the “have nots” in many settings. The legal terrain in the United States is strewn with individual and collective claims of bathroom access denied. These claims are commonplace among people with disabilities; among female workers in traditionally male professions; among transgender individuals; and among marginalized employees--particularly farm workers, garment workers, and factory line workers.
Few affirmative rights to bathroom access exist, with disability rights laws offering some of the rare acknowledgments that needful bodies—and not just abstract, rights-bearing individuals—ought to be situated within the law. This essay focuses on claims—both to bathroom access and to freedom from discrimination based on toileting needs—that have been brought in U.S. courts. Though federal disability rights legislation has provided some rights to bathroom access in employment and public accommodations, the rights are limited, are arbitrarily claimed, have been narrowly interpreted by judges, and often ignored by businesses. And while groups of people with specific medical conditions are currently lobbying states to pass legislation mandating broader bathroom access, the scope of these bills is quite narrow. Ultimately, many individuals with non-ideal bodies are left, quite literally, without a pot.
This essay, though light in title, examines several serious issues—practical, legal, and theoretical. It explores the scope and limits of bathroom access rights in the United States by examining the numerous, and overwhelmingly unsuccessful, bathroom access cases that have been raised in the courts. It also examines how lawmakers and judges fail to situate real and variable bodies, rather than ideal bodies, within the law and thereby produce and define ideal bodies. Finally, this essay also suggests how scholars and reformers might engage in a new analysis of intersectionality—an analysis attentive to universal needs and to the ways that unmet needs correlate with various axes of subordination.
Keywords: disability, civil rights, human rights, employment discrimination, public accommodations, bathrooms, intersectionalityworking papers series
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