PM40030156 common toeverybody. room a on perspective new a for in settle and down sit So us. around all is law the that way another from emerge will what , of sewers the of study case in-depth an to washroom the with associated regulations and laws to introduction of issue This eral purposes: So what is law? Laws are democratically-constructed and broadly accepted rules meant to serve sev- diverse society. our for order provides law that demonstrate they that realize also you’ll and examples, these about These three simple examples demonstrate three ways that law is all around us. But think more deeply ties clean.Foodinspectionsaremeanttoensurewhatweeatissafe. keepto communi- designed our are regulations Litter drive. can we fast how determine limits Speed • • • • and stability. predictability of degree some ensures and society our in order for framework a provides Law Law protectscitizens,theirproperty, andrights. Law isawayofresolvingdisputesinanorderlymannerfollowinglegalrules. pro- grams. social establishing and practices, business honest prescribing trial, fair a to right the ing protect processes, democratic promoting as such goals with values social broad supports Law takes an uncanny approach to examining these purposes of law. From a quick law.a of From purposes these examining to approach takesuncanny PLEA an The The Bathroom Barrister Bathroom The is a better understanding of yet of understanding better a is The PLEA Vol 32No2 - A Legal Trip Around the Loo

Contrary to popular belief, the flush toilet was not invented in the mid-1800s by a British plumber named Thomas Crapper. Rather, it first appeared in the late 1500s. Invented by Queen Elizabeth’s godson Sir John Harington, the toilet was installed in the Queen’s palace at Richmond. The slang name “The Throne” suddenly seems more appropriate, doesn’t it? As bathrooms have evolved, so has the law. Let’s take a look at some of the ways the law applies.

Right to Use the Washroom The Supreme Court of Missouri stated “a person’s right to use public restrooms is about as fundamental a right as one can imagine, probably equal to or more fundamental than speech rights.”

If the right to use the restroom is believed to be a fundamental right, what obliga- tions does the state have to ensure this right is respected and promoted?

Patents Patents grant an individual or organization the right to make, use, or sell an item of their invention. A patent will protect inventions from being copied for several years. The first patents for toilets appear to date back to the 1770s. Thomas Crap- per was granted several patents in the mid-1800s for his innovations that helped popularize the flush toilet.

Because patents grant inventors exclusive rights to their new designs, do they encourage innovation or exclude others from advancing technology?

Seawater Toilets To curb the shortage of fresh water in Hong Kong, in 1960 laws were changed to encour- age the use of seawater toilets. One barrier to introducing seawater toilets was that the construction of a separate water system for Hong Kong was required. Today, around 80% of Hong Kong’s toilets use seawater.

Would the construction of a second, non-treated water system for lawn watering and toilets be a sound use of public money?

2 A Legal Trip Around the Loo

Toilet Paper Tax In 2009, a 3% tax on toilet paper was proposed in the American Water Resources Protec- tion Act. The idea was to tax sources of water . Although it is within the rights of the government to tax sources of pollution, the law did not pass. Is it fair to tax toilet paper when most governments already charge user fees for sewers?

The Public Spitting, Urination and Defecation Bylaw In 2004, Saskatoon City Council passed The Public Spitting, Urination and Defecation By- law. It specifically prohibited spitting on public property, and urinating and defecating anywhere in public. The penalties for breaking this law can be as high as $200 or up to thirty days in prison. If a community prohibits public urination and defecation, should it then ensure the availability of 24-hour public washrooms?

Gender-Neutral Bathrooms For transgendered people, it can be difficult to find a bathroom appropriate to their gender identification. Groups have formed to help remedy bullying and discrimina- tion. One such website, safe2pee.org, has a user-created database of single-stall lock- ing bathrooms and many links to resources on gender-neutral bathrooms. What would be the merits and drawbacks of having laws promoting gender-neutral bathrooms in public places?

? Think

Review the four purposes of law put forth on the front page of this issue of The PLEA. How do the bathroom laws and regulations outlined above fulfill these purposes of law? Can you think of laws you would like to see put in place?

3 Dine and Dash... To the Washroom

In Saskatchewan, restaurants are material that can be cleaned easily. commodate people with physical required to have public washrooms. There must be an adequate number disabilities. The washroom must be And it’s not enough to simply have of easily-cleaned waste containers. designed with a clear path of travel any available washroom. The prov- Paper towels, roller-type towels, and with an appropriate width. At ince’s Public Eating Establishment or hot air dryers are required. And least one stall must be at least 1.5 Standards spell out specific criteria dispenser soap is mandatory. metres long and 1.5 metres wide. for the washrooms of most eating Grab bars and coat hooks must establishments. While the stan- How Many? be present and at specific heights dards themselves are not—strictly The number of washrooms is large- and positions so that they can be speaking—considered laws, they ly dependent upon the seating reached from a seated position. become legally binding on restau- capacity of the restaurant. There Sinks, toilets, and door handles rants when they are included as a must be at least one washroom for must have lever-type hardware. If condition of the restaurant’s licence each sex when the seating capac- mirrors are provided there must be to operate. A particular restaurant ity is 50 or less. For every 50 more at least one lower or downward- can ask to have the requirements people in seating capacity, one ad- slanted mirror so that a person in modified in some circumstances. ditional washroom fixture must be a wheelchair can use it. And sinks added for males and two additional must have clearance below so Location, Location, Location washroom fixtures for females. hands can be washed while sitting Restaurants can’t just put a wash- But What if it’s dirty? in a wheelchair. The requirements room anywhere they please. Cer- are meant to ensure people with Just because the washrooms are tain location requirements are physical disabilities will have equi- there doesn’t mean that they’re al- spelled out in the Public Eating table access to washrooms. Establishment Standards. Wash- ways in that great of shape. Luck- rooms must be conveniently lo- ily, public standards require wash- Are Standards Necessary? cated and the public must be able rooms to be “clean and in good It may seem silly that all these to get to them without having to repair” and that they be cleaned at standards need to be in place. But pass through an area where food least once a day. what happens when government is stored, prepared, or served. The Barrier-Free Washrooms absents itself from regulating res- path to the washroom must be of taurant washrooms? Consider one Generally speaking unless the res- appropriate width and clear of ob- example. In Honolulu, Hawaii, taurant was built before accessi- structions. many fast-food restaurants and bility standards came into effect coffee shops have no public wash- and has not since been renovated Once Inside rooms at all! This means after you restaurants must ensure that their Restaurant washrooms are not finish that large coffee or super- washrooms are barrier-free to ac- just required to be in certain loca- sized soda, you’re on your own. tions. They must be built to certain standards. Sinks with hot and cold water must be provided. Floors ? Think and walls around toilets and urinals must be finished in an impervious 1. How do Saskatchewan’s laws and regulations for res- taurant washrooms provide a degree of predictability and stability for restaurant patrons? 2. What concerns come about when a res- taurant has no washroom at all?

4 Yes You Can! Sort of...

Almost all restaurants are required this would never happen to anyone influential political science and law to have public washrooms. Howev- again. Today, versions of Ally’s Law professor, Diefenbaker wrote: er, most businesses—while required are now in force in 12 states. “a people can never be made to have washrooms for their em- Given Ally’s experience, it is dif- good by legislation, a point ployees—are not required to have ficult to dispute the value of such that many of us never learn.” public washrooms. But if you really legislation. This, however, has not have to go, what can you do? Are Whether or not you agree with Die- stopped some online blog posters you entitled to use the bathroom of fenbaker’s stance, he does raise a from criticizing it. And while it’s al- any private business? point worthy of debate. On its face, ways healthy to critically question Ally’s Law does not make retailers In short, the answer is no. laws, what may be most surprising good. Instead, Ally’s Law requires for Ally’s Law’s critics is the philo- However, there has been a move- retailers to do good, by providing sophical company they find them- ment afoot in the United States access to their washrooms. selves in. Those questioning its to change this. The Restroom Ac- merits may share the perspective cess Act, passed in Illinois in 2005, The Diefenbathroom of Canada’s former Prime Minister requires retail establishments to Over 30 years after Diefenbaker’s John Diefenbaker. provide access to employee-only passing, it is impossible to say ex- restrooms in the case of medical People Doing Good actly how he would react to Ally’s Law. But for what it’s worth, Die- emergencies. Also known as Ally’s To be clear, it appears that John Die- fenbaker House Museum in Prince Law, the Restroom Access Act was fenbaker had no particular stance Albert does have a public wash- spurred by Crohn’s Disease sufferer on restroom access. However, in room. As Diefenbaker said, “there Ally Bain. Shopping in an Old Navy, his memoirs One Canada, Diefen- is an inherent fairness in people.” she suddenly found herself in need baker put forth a philosophy about of a restroom. Denied access to the the purpose of laws. Citing his most employee restroom, Ally had an un- fortunate accident in the store.

From a Negative to a Positive ? Think Ally successfully lobbied the Illinois 1. Should businesses be legislated to provide the public with state government for a law so that access to their washrooms? 2. What can we learn about society given the fact that several American states need to legislate that businesses allow customers to use their washrooms, even in an emergency?

5 The Great Stink of London: A Case Study

The advancement of public sanitation With the river filled with garbage and had no true central government, leav- systems—such as garbage and recy- human waste, most Londoners used ing parishes and boards to oversee cling—have helped to reduce disease well water for drinking. each neighbourhood’s sewer. and make cities cleaner. Such public Meanwhile, strict restrictions on health improvements have just as Laws to Protect the Public dumping into rivers drove up the need much to do with the advancement of Because the polluted streets and wa- for cesspools. By 1810, London had technology as they do with the appli- terways created environmental con- over 200,000 cesspools for its popu- cation of law. The story of London’s cerns, laws were needed to preserve lation of just over one million. The sewers illustrates this well. London’s public health and cleanliness. By 1347, a concerned King Edward III contents of these pools leeched into London’s Washroom History forbade anyone from throwing rubbish the ground water, spreading diseases London’s earliest-known toilets date or human waste into the city’s streams such as . It has been said that back to the mid-eleventh century. Sim- and rivers. Instead, such filth was to be the “sparkling wells” of the city were ple tunnels drained into water flow- hauled out of the city by street clean- sparkling because of the presence of throughs below residences. These ers called “muckrakers.” ammonia and other organic materials toilets were called “garderobes.”The from waste. Attitudes and laws about dump- name translates as “guarding one’s ing waste in London’s waterways The Great Stink robes” and is believed to have origi- changed as years passed. In 1383, la- By 1850, London was in the throes of nated from the practice of hanging trines—but not garbage—could again great change. Its population hit two one’s wardrobe in the toilet shaft be dumped into the Thames and its million. The flush toilet or “water clos- because ammonia from urine would feeder streams. But banishment re- et” went from niche item to common- kill fleas. By the 1200s, many of the turned in the mid-1400s. Latrines place. And the agricultural market for extremely well-to-do in London had over the and the Fleet, two cesspool waste collapsed. As a result, elaborately-constructed garderobes. of the Thames’ feeder rivers, were re- legislation was put in place requiring For those without a garderobe—and stricted. homes to be connected to sewers. there were many—other forms of But with all this waste draining into By 1531, London’s growth in popula- medieval toilets existed. Private and the , disaster was brew- tion required more drastic action. In public latrines were built over running ing. When the thermometer rose in response King Henry VIII put forth a streams and moats. As well, the cellars the summer of 1858, the stench from Bill of Sewers. The bill was a major of many homes had cesspools with a the Thames made London unbear- coordinated effort to construct and latrine built overtop. The cesspools able. Thus began The Great Stink. regulate underground pathways for were periodically cleaned out, with the London’s waste. So bad was the smell, the Palace of waste sold to farmers for fertilizer. —the riverside meeting Other people used chamber pots. The Progress: The 1800s place of the United Kingdom govern- pot’s contents were tossed into street By the early 1800s, London had a ment—was virtually uninhabitable. gutters. Because the gutters did not somewhat organized public sewer Members of Parliament were seen always flow well, the person whose system. However, the system suffered rushing out of the legislative chamber residence abutted the gutter was re- two major problems. The first prob- holding handkerchiefs over their nos- sponsible for keeping the gutter clean lem was that the sewers were primar- es. Curtains were soaked in lime chlo- and clearing out any clogs. ily meant for rainwater. Household ride to absorb the foul stench blow- waste was not yet linked to the city’s ing in. With legislators now suffering The end-destination of all of Lon- sewer system. The second problem first-hand, something was about to don’s waste was the River Thames. was a lack of coordination. London be done.

6 The Great Stink of London: A Case Study

A New Sewer System of sewage was a responsibility for coming from the River Thames. More What London required was a central- individuals and not the government. importantly, the efficient removal ized and orderly sewer system capable They editorialized that: of sewage from London eliminated many water-borne diseases such as of moving its sewage out of the city “Suffering and evil are nature’s cholera. and closer to sea. Unfortunately, what admonitions; they cannot be London had was a sewer system con- got rid of; and the impartial The Result trolled by 1,000 commissioners from attempts of benevolence to In retrospect, even those who opposed various neighbourhood authorities. banish them from the world by the sewer were still winners. The con- The United Kingdom’s Parliament legislation, before benevolence struction of London’s central sewage concluded that a central government has learned their object and system improved the environment had to be given authority to build an their end, have always been and freed all Londoners from many integrated sewer system. The Metro- more productive of evil than diseases. In fact, it has been said that politan Board of Works, a central pub- good.” John Bazalgette, the chief engineer lic works board with elected members In the end, good sense trumped ar- of the system, probably “saved more from each area of the city, was creat- guments of individualism. London’s lives than any single Victorian public ed by Parliament to rebuild London’s Metropolitan Board of Works was official” due to the public health ben- sewer system. The new sewer sys- entrusted with constructing a central efits of an integrated and effective tem would discharge London’s waste sewage system. sewer system. The laws and regula- downstream from the city and closer tions that created London’s public to the ocean. This, it was hoped, By 1870, London’s new sewage system sewer system allowed for the resolu- would abate The Great Stink. was discharging the city’s waste out- tion of centuries of sanitation issues. side the city limits. The most obvious Thus, the law achieved one of its pur- Opposition effect was the elimination of stench poses: protecting citizens. Opposition to the Metropolitan Board of Works was rampant. When the idea was first proposed, many were ? Think concerned that a central authority of public works undermined the author- 1. Did the laws and regulations to create London’s central sew- ity of local government. Some oppo- age system: nents even speculated that the Board a) restrict freedom, by requiring citizens to follow rules for was the end of government account- public sanitation; or ability to the people. b) promote freedom, by providing individuals freedom from Despite criticisms, the Board took of- the burden of sewage clean-up and disease, thus allowing fice. When it was given authority to pursuit of other choices? construct a central sewage system, 2. Members of Parliament only worked to solve London’s sewage its opposition changed tacts. They problem once they were directly affected by The Great Stink. now argued that flushing sewage out What does this teach us about the importance of elected rep- of London interfered with, as Prime resentatives being in tune with the people they are elected to Minister Lord John Russel put it, “indi- represent? vidual will and freedom from control.” The British magazine The Economist 3. Look back to Diefenbaker’s philosophy about laws on page 5 also believed that cleansing London (“a people can never be made good by legislation”). Is it simi- lar to The Economist’s rationale for opposing London’s sewers? What does The Great Stink teach us about the limitations of this philosophy? 4. Do you see any similarities between The Great Stink and local recycling? Climate change? The bitumen sands?

7 Recommended Bathroom Reading

This issue of The PLEA has barely The Cross-Dressing Case for An Asbo in 14th Century Britain plunged into how the law relates Bathroom Equality This feature from the United to washrooms. Below are many Jennifer Levi and Daniel Red- Kingdom’s public broadcaster of the sources used for this issue man examine the discrimination uses primary source documents of The PLEA. Exploring some of transgendered people face when to frame a discussion about his- them will help you further under- using public washrooms. torical sewage issues facing Lon- stand the law’s ever-present role http://digitalcommons.law.wne.edu/cgi/ don. in our lives. Check them out! viewcontent.cgi?article=1218&context www.bbc.co.uk/news/magazine-12847529 =facschol The Development of the Flush- Latrines and Cesspools of Medi- ing Toilet Barrier-Free Washrooms aeval London British bathroom fixture manu- This Government of Saskatch- Ernest L. Sabine’s 1934 examina- facturer Twyford Bathrooms de- ewan pamphlet outlines the tion of official and private docu- veloped this detailed timeline requirements for barrier-free ments brings to light the history for the 400th anniversary of the washrooms. of private toilet facilities. flush toilet’s invention. http://www.publications.gov.sk.ca/ www.personal.leeds.ac.uk/~cen6ddm/ details.cfm?p=10541 www.twyfordbathrooms.com/ History/MediaevalLatrines.pdf company/~/media/Twyford/Files/ thedevelopmentoftheflushingtoilet.ashx The Great Stink of London: The History of Sanitary Sewers Sir and the This non-profit educational web- The Right to use the Bathroom Cleansing of the Victorian Me- site provides history about the and the Torts Involved When tropolis development of sewers over the Forcing the Retention of Hu- Stephen Halliday’s book exam- man Waste past 5,500 years, including a wide ines the obstacles and successes array of outside links. Brian Pedigo’s research paper that civil engineers, government, www.sewerhistory.org examines American legal prece- and citizens faced when con- dents related to preventing peo- structing a sewage system for ple from using the bathroom. Victorian London. http://pedigolaw.com/assets/files/PDFs/ The History Press, 2001 Bathroom%20Rights.pdf

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