35 Pages Posted: 20 Mar 2017
Date Written: March 20, 2017
This article argues that single-sex public restrooms violate the equal protection clause of the Constitution because they constitute a violation of sexual stereotyping and formal equality principles. Restrooms signs are symbolic “Barbie” dolls with their exaggerated and reinforcing sense of what it means to be “female.” Even if the iconic stick-figure signage were to change, people must needlessly sort themselves by gender each time they use a public restroom and comply with the differing gender-based norms within those spaces. They also violate formal equality principles as they echo the educational segregation of the past when students lined up by sex each time they entered the school building and perpetuate a type of all-male private club by excluding women from business, social, and political interactions with men.
The article makes the novel suggestion that we should flip the default rules. We should transition towards making large, communal public restrooms available to “all-comers,” with a variety of private toileting options, as well as have available a limited number of single-stall restrooms. This solution would allow anyone to pick an entirely private option of a single stall while not forcing anyone to sex-identify as a precondition to entering a communal restroom. The stick-figure signage of sex-segregation would become an historical relic.
Keywords: bathrooms, restrooms, equality, transgender, sexual stereotyping
JEL Classification: K19
Suggested Citation: Suggested Citation
Colker, Ruth, Public Restrooms: Flipping the Default Rules (March 20, 2017). Ohio State Public Law Working Paper No. 388. Available at SSRN: https://ssrn.com/abstract=2937718