Academic journal article Texas Journal of Women, Gender, and the Law

Coming out of the Water Closet: The Case against Sex Segregated Bathrooms

Academic journal article Texas Journal of Women, Gender, and the Law

Coming out of the Water Closet: The Case against Sex Segregated Bathrooms

Article excerpt


We cannot separate the cultural and biological definitions of man and woman; they make up two sides of the same coin. Still, we try to force a rigid sexual distinction, ostensibly for practical purposes. Sex segregated bathrooms appear as perhaps the most innocuous places where we distinguish between men and women, but as this Note suggests, segregating bathrooms by sex does a disservice by stratifying harmful assumptions about sexual difference.

Part I of this Note will examine the legal history of sex segregated bathrooms, reviewing the justifications for early 20th century state statutes and codes requiring sex segregated bathrooms. This discussion serves as a segue to an examination of the biological definition of sex and its underlying assumptions. Drawing from a range of feminist scholars, Part I will look at the way that our cultural and scientific knowledge has been constructed to support a particular view of sexual differentiation, a view that impedes any serious aspirations of thwarting destructive gender discrimination and violence.

Part II of this note will look at contemporary consequences of sex segregated bathrooms, focusing on the 10th Circuit's very recent decision in Etsitty v. Utah Transit Authority in which it held that an employer may permissibly fire a transsexual employee without offending Title VII or the Equal Protection Clause on the basis that the transsexual employee may incur liability when using public restrooms while on the job. Particular attention will be paid to the rationales used by the Etsitty court, including analysis of the court's rejection of the plaintiffs argument, based on the Price Waterhouse case discussed below, that she was fired for failing to conform to stereotypical gender norms. Part II will finish with a discussion of alternatives offered by critical feminist perspectives, and will argue that unisex bathrooms best remedy the problems caused by sex segregated bathrooms.

Part I: The Emergence of Sex Segregated Bathrooms

A. Early Statutes

Sex segregated bathrooms did not arise naturally - starting in 1887, state laws began requiring them.1 After constructing a survey of state statutes and related literature, law professor Terry Kogan concluded that four rationales justify legally mandating sex segregated bathrooms: protection, sanitation, privacy, and morality.2 Looking at each of these rationales in detail helps to show the cultural baggage that sex segregated bathrooms have carried since their inception.

1. Protection

Although we have come a long way since the days when people believed that men intrinsically possessed superior anatomy to women, many still justify distinguishing between men and women on the basis of biological differences. Often the distinctions we make between men and women on the basis of biology end up suggesting women's inferiority, such as women's exclusion from job opportunities because of pregnancy, or the military's combat exclusion which keeps women off the front line under the rationale that women are biologically weaker than men. Many feminists have explicitly or implicitly agreed that a biological basis for sexual distinction can exist, but this concedes too much. As Anne FaustoSterling describes the problem, "[i]n ceding the territory of physical sex, feminists left themselves open to renewed attack on the grounds of biological difference. . . . Our bodies are too complex to provide clear-cut answers about sexual difference."3

Fausto-Sterling recounts the story of Maria Patino, Spain's top woman hurdler, who failed her sex test before the 1988 Olympics. As it turned out, despite having all the phenotypic characteristics of a woman, Patino also had a Y chromosome.4 She had a condition called androgen insensitivity, which caused her cells to ignore the testosterone in her body.5 After two and a half years of examinations and effort, Patino rejoined the Spanish Olympic squad, and became the first woman to ever successfully challenge sex testing for female athletes. …

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