The bizarre history of bathrooms getting in the way of equal rights

After this year's historic victory on marriage equality, LGBTQ rights advocates aren't done fighting for equal rights. Their next goal is to prohibit discrimination based on sexual orientation or gender identity nationwide. More than half of US states still don't protect gay, lesbian, bisexual, or transgender people from getting fired or discriminated against at work, and equal access to housing or public spaces like restaurants isn't universally guaranteed.

Passing anti-discrimination laws would seem to be a no-brainer. Most Americans support laws against firing people for being gay or lesbian, and most actually think this is the law already. But LGBTQ equality groups are running into a weird, reactionary stumbling block in this fight: bathrooms.

There's a persistent but completely baseless myth that allowing transgender people to use the bathroom of the gender they identify with will promote sexual assault against women and girls. There's absolutely no evidence that this is the case, but that doesn't stop fearmongering ads that show men putting on dresses in order to prey on women in bathrooms.

This line of attack already helped defeat a measure in Houston that would have protected LGBTQ people from discrimination in the workplace, housing, and public accommodations. And as BuzzFeed's Dominic Holden reported this month, the same tactic is being used to defeat or overturn other anti-discrimination laws — and major advocacy groups like the Human Rights Campaign seem to be at a loss as to how to fight it. The "bathroom myth" is tapping into some deep political and cultural anxieties, and this isn't the first time that bathrooms have stood in the way of equality.

Panic over gender-neutral restrooms once helped derail a constitutional amendment guaranteeing equal rights for women

Photo by Brendan Smialowski/Getty Images

In the 1970s, the US came very close to ratifying the Equal Rights Amendment, which stated simply: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." Women's rights advocates argued then, as they do now, that we need the ERA because there's no constitutional guarantee against gender discrimination. Such a guarantee would offer women the strongest possible legal protections against discrimination, stronger than current laws and court precedents offer.

But conservative opponents of the ERA, led by Phyllis Schlafly, successfully convinced the public that the amendment would lead to horrifying unintended consequences. Some of those feared consequences, like legal same-sex marriage, have already come to pass without the ERA's help and without society falling apart. But Schlafly also argued, dubiously, that the ERA would mandate unisex bathrooms because it would somehow erase all differences between men and women in the eyes of the law. It was a very successful argument. Anti-ERA campaigns ran with the idea that rapists and pedophiles would be free to lurk in women's restrooms, and that women would lose their right to privacy in this very intimate sphere.

"Such a fear energized conservative women against the amendment, but it also rallied their husbands to protect their wives and daughters from the dangers of sex-integrated bathrooms," writes Neil J. Young at Slate. "If women could not retreat to the privacy of their own restrooms, where could they be safe from the dangers of the world outside their homes?"

The anti-transgender bathroom myth appeals to the same paternalistic, protectionist impulses. One ad declares that "the women and children of Indiana are in great danger" from a new LGBTQ nondiscrimination bill.

To be sure, it's not just conservatives or overly protective men who buy into the bathroom myth. Some radical feminists argue that women who were born biologically female need their own segregated spaces safe from any "male-bodied persons," which they say includes transgender women. But overwhelmingly, the bathroom myth taps into a deep fear of change and of upending traditional gender roles. And a lot of feminists say it's time to take another look at the gender politics of bathrooms.

Toilets as a feminist issue

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Many feminists argue that gender-segregated restrooms are an archaic institution that doesn't help anybody, and often helps discriminate against women in particular.

"However natural separating men and women in the bathroom may seem, it’s a cultural creation, with its roots in the Victorian era," wrote Emily Bazelon in the New York Times Magazine. As more women entered the workforce and spent more time in the public sphere, it became necessary to build facilities to accommodate them. Sex segregation was justified on privacy grounds, but also out of sexist concerns for the "weaker body of the woman worker."

It was a good thing that women's bathrooms got built, because it allowed women to participate in work and public life. But sex-segregated restrooms also became tools to perpetuate women's inequality. In an essay called "Toilets are a Feminist Issue," University of Maryland law professor Taunya Lovell Banks recalls a time when women had to pay to access public restroom stalls but men didn't have to pay for urinals. The issue was compounded by race, when segregated restrooms often meant unequal access in practice. "In the South you had to plan ahead if you might need to use a toilet away from home," Banks writes.

Feminist writer Soraya Chemaly recently called out long women's bathroom lines as one example of everyday sexism. Even if men's and women's facilities take up the same amount of space, that doesn't accommodate women's needs for more time (to undo clothing and sit down to urinate, to deal with menstruation, to help children use the bathroom) and more room (women can only use stalls, while men's urinals take up much less room).

Banks points out that women have even been denied equal employment based on bathroom access, or lack thereof. Employers have refused to hire women because they don't already have adequate facilities for women, women have suffered from poor sanitation in the facilities that do exist, and women have been barred from "men's clubs" where power is concentrated.

In one major power center, the US House of Representatives, women lawmakers didn't get a bathroom close to the House floor until 2009. And of course Hillary Clinton recently faced a barrage of bizarre misogynist backlash when she missed part of the last Democratic debate because the women's restroom was too far away.

All-gender bathrooms could benefit everyone, but fearmongering persists

(Philippe Lopez/AFP via Getty Images)

Given the already fraught gender politics of women's-only bathrooms, and given how important restroom access is to the everyday needs of transgender people to live and be accepted as the gender they identify with, many say it's time to move away from gender-separated bathrooms entirely.

Some sanitation advocates say that single-door, direct-entry stalls, rather than "gang toilets," would both make more efficient use of space and solve gender parity issues.

And they could solve even more problems than that. "Such restrooms would be useful for parents of opposite-sex young children, adult caregivers of opposite-sex older parents, Muslims who perform ritual ablutions, transgender individuals, women who routinely face longer public restroom wait times, men whom 'potty parity' laws have left with longer wait times, and anyone who's ever been inconvenienced because their assigned bathroom was undergoing cleaning with no alternative available," wrote Elizabeth Nolan Brown at Reason.

But all of this is much bigger-picture thinking about equitable restroom access than most nondiscrimination bills engage in. Proposed laws like the one in Houston that fell victim to bathroom fearmongering wouldn't mandate gender-neutral bathrooms in all public areas; they would just prohibit discriminating against transgender people who want to use the bathroom of their choice.

It's not clear how LGBTQ rights groups will get around people's discomfort with the bathroom issue in moving forward with anti-discrimination campaigns. They might engage in storytelling to make people see the human faces and real stories of the transgender people who are being discriminated against. Some trans men are posting selfies of themselves in women's bathrooms to show how ridiculous it is to force trans people to use the bathroom of the sex they were assigned at birth.

And of course, anti-discrimination laws are also about much more than bathroom access. They're about making sure LGBTQ people can't get fired, be denied housing, or be turned away from public services because of who they are or whom they love. It's a big issue that's being derailed by a narrow, groundless fear, but a fear that comes with deeply rooted cultural baggage.