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Bathroom V. Courtroom: Confluence for Symbolism of Protected Class, Politics, Social Justice, Safety and Health

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Bathroom V. Courtroom: Confluence for Symbolism of Protected Class, Politics, Social Justice, Safety and Health Bathroom v. Courtroom: Confluence for Symbolism of Protected Class, Politics, Social Justice, Safety and Health Barbara Qualls, Ph.D. Wayne D. Haglund Stephen F. Austin State University Haglund Law Firm, P.C. [email protected] [email protected] 1 “If freedom makes social progress possible, so social progress strengthens and enlarges freedom.” Robert F. Kennedy INTRODUCTION There is no shortage of issues on which members of the political far left and far right can assume positions that preclude the finding of common ground. There is, however, at least one issue that can serve as surrogate for many other partisan issues. That issue is: Who can use which segregated public bathroom? A time-tested definition of social justice was presented by Louis Brandeis: “Social justice is the fair and just relation between the individual and society. This is measured by the explicit and tacit terms for the distribution of wealth, opportunities for personal activity and social privileges” (Brandeis, 1916). Over a hundred years later, that definition seems tailor-made for today’s clash between those who practice or tolerate gender fluidity and those who do not – specifically as that clash is fought behind the euphemistic screen of public bathroom access. In an address before the Chicago Bar Association in 1916, Brandeis said, “In the last half century our democracy has deepened. Coincidentally there has been a shifting of our longing from legal justice to social justice, and – it must be admitted – also a waning respect for law. Is there any causal connection between the shifting of our longing from legal justice to social justice and waning respect for law? If so, was that result unavoidable?” What is legal and what is moral should never be assumed to be equivalent, but modern grassroots movements for social justice include efforts to break existing social barriers, while creating safety nets for those who traditionally have been socially marginalized. Naked statements of bigotry, intolerance, bias and hatred are often met with significant pushback, even from those who might share the belief systems that generate those statements. As a result, 2 euphemisms and socially acceptable language is sought to allow their expression, while avoiding unilateral dismissal and condemnation. Public bathrooms and who gets to use them provides a rich field for examination of the clash of law and tolerance, discrimination and human rights, class and race – with vague sexual and danger overtones. In addition, public bathroom access has a distinct economic component. How much was the State of North Carolina (or Texas or Colorado) willing to pay to placate an increasingly socially isolated part of its citizenry? HISTORY AND PERSPECTIVE The term “bathroom bill” has emerged as a description of legislative effort to regulate access to public bathroom facilities. Most frequently, the regulatory effort is aimed at transgender people. There are three designations of ‘gender’ used most often in bathroom bill language – sex assigned at birth, sex as recorded on birth certificate, and sex that corresponds to gender identity (Lopez, 2016). Recent history of bathroom wars as political/social statement took tangible form in March 2016, with the beginning of discussion of what would become HB 2 in North Carolina. This discussion was the state-level response to a municipal law in Charlotte that allowed people to use bathrooms that aligned with their gender identity. Charlotte’s law was like one already in place in San Francisco. The previous December (2015), Washington State clarified an intact law, defining bathroom accessibility as consistent with a person’s gender identity. A few months earlier, a Philadelphia law required gender-neutral signage for single-occupancy bathrooms. A few months earlier, the Justice Department (under then-President Obama) had argued for a transgender high school student in Virginia, specifically concerning bathroom use. In April of 2015, President Obama established a gender-neutral bathroom in the White House. It should be 3 noted that these municipal and local actions were in response to a series of proposals for transphobic laws across the country (Drum, 2016). North Carolina’s HB 2 was soundly thumped in media and vocal protest. Almost immediately, the probable high economic impact of the legislation became evident with a series of threats of boycotts, cancellations, and loss of business. Among the threatened boycotts were PayPal and the NBA. In addition, the federal government (under then-President Obama) brought discrimination suit. By 2017, North Carolina may have temporarily retreated from the forefront of the bathroom wars, but over fifteen other states continue exploring that option, with varying levels of success. Surface level examination of the arguments for each side of bathroom war legislation might indicate that it is all about biology, but in earlier times – as now – bathroom access has really been about social issues, attitudes and biases (Wheeling, 2017). One problem that writers of modern-day bathroom bill language face is that they cannot bluntly assert their intent. Euphemisms and blatant falsehoods about intent are usually substituted for transphobic and homophobic language, in much the same manner that substitute language was used to mask racial discriminatory intent in the past. Kogan (2007) repudiated a common assumption that sex-segregation of bathrooms was essentially an effort to recognize biological differences and privacy needs or preferences. In fact, ‘separate facilities’ does seem benign and natural, until one considers wheelchair users who need assistance from an opposite sex partner or provider, a transgender individual dressed and presented in gender identity who is banned from bathroom use at work, parents of opposite sex children in a public place (Kogan, 2007). The number and variety of exceptions to binary gender – thus easy bathroom access assignment – complicates in a hurry. 4 It is almost impossible to reach consensus or resolution for an issue that does not have specific, comfortable and grown-up language. One example of how uncomfortable it is to discuss bathroom politics can be seen in the many names and substitute names there are for the place itself: the restroom, the john, the commode, the porcelain throne, the potty, the sandbox, the ladies’ room, the men’s room, the facilities, the loo, etc. Bathroom Access Conflict – Symbol for Social Conflict Public bathroom access by gender nonconforming individuals is, of course, a legitimate issue, but it also stands as a substitute for a series of other prejudices. These include conflict between social conservatives and social progressives, religious tolerance and conviction, and genuine concern about the safety of women and children in public bathrooms and opportunism by politicians. Because of that circuitously tangled set of facts, opinions, law, and common usage, the issue may provide foundation for legal, educational, and social discourse for quite some time. An additional facet for examination includes economic impact. Many businesses, national sport leagues, and touring entertainers who draw huge arena audiences have boycotted cities and states where repressive bathroom access regulations are in place or contemplated. Bathroom wars, as both legal and social battlegrounds, have been among the dominant features of public interest during the last several years. Almost every political leader has contributed their own commentary, but it is difficult to determine whether they express actual concern or echo what is expected from their respective support groups. Among those who have taken public positions are President Barak Obama, then-Attorney General Loretta Lynch and her successor AG Jeff Sessions, Hillary Clinton, Bernie Sanders, Ted Cruz, and President Donald Trump. If proponents of bathroom access limiting legislation hide behind euphemisms, opponents of such legislation are quick to call them out. Opponents have been quick to point out 5 that the real generative motivation behind limiting access is part of a wide sweep effort to stanch the LGBT movement, and by extension, the non-gender-conforming movement (Young, 2016). Bathroom access is certainly an issue of today, but it has also been an issue for much longer than just the non-gender-conforming era. During the Industrial Revolution, as women entered the workplace, segregated bathrooms were an issue. During the Jim Crow years, racially segregated bathrooms were an emotional and divisive issue. During the active Women’s Lib movement, the segregated bathroom was an issue argued by both sides. On almost every front where social discourse and disagreement occurs, and where law is needed for regulation, bathroom access plays a role. These areas of disagreement include race, class, gender, crime, and sexuality. In each era where a skirmish in the bathroom wars took place, the major figures of the day also contributed to the discourse. Among those were Presidents Lyndon Johnson, Jimmy Carter and Ronald Reagan, Reverend Martin Luther King, Jr., and one of the loudest and most influential: Phyllis Schlafly. In fact, it is a strong possibility that the Equal Rights Amendment would today be the law of the land, had Ms. Schlafly’s 1970s voice not been as convincing as it was. As an architectural phenomenon, separate public bathrooms for men and women began in the early 19th century (Young, 2007). At that time, the separate public bathroom for women was meant to provide women with some of the same security of their home. The ladies’ room was a safe place to retreat from the rough world – which included men and other dangers. It was also in this era when women entered the workforce in increasing numbers, requiring consideration for their bathroom needs in factories. During the period between 1887 and 1920, 44 of the existing states had codified law requiring sex-segregated bathrooms in public places, including the workplace. 6 After WWII, the growing economy resulted in new homes for many of the newly educated and trained returning servicemen. Those new homes were mass-produced and built in such numbers and included some features that had been only in more expensive homes before.
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