Using the toilet is a basic human need. Everyone needs to relieve themselves and defecate; these are natural bodily functions. As small children, going to the bathroom is typically a shameless affair. It is not unusual to do your business under the care and supervision of a parent or caregiver at home and in public washrooms. I remember accompanying my mother into public women’s washrooms as a small boy when I had to go. As we grow older, using the bathroom becomes a more private affair. People generally prefer to respond to the call of nature without an audience. This preference was brought home to me the time while serving in the Canadian Army I found myself and my regiment taking part in an exercise at a National Guard camp in Grayling, Michigan. In 1979 at least, the U.S. Army did not concern itself with privacy in the washroom facilities for the lower ranks. The urinal was an open trough, and the “shitters” were in a row in plain view. Pooping in plain sight of your comrades took a little getting used to. Fortunately, with existing etiquette concerning public washrooms, one is generally assured a modicum of privacy. Also, public washrooms are designated for men and women separately. This has long been the norm and quite reasonable, so how did public washroom etiquette become such a hot button issue in recent history?

The issue is some state governments in the United States passed legislation concerning the use of public washrooms and change rooms by transsexual persons. In North Carolina, for example, House Bill 2 the Public Facilities Privacy & Security Act was enacted into law on March 23, 2016. The law specifies that public washrooms and change rooms will remain designated for men and women separately based on their biological sex. Biological sex is defined in the legislation as “the physical condition of being male or female, which is stated on a person’s birth certificate.” (Public Facilities Privacy & Security Act ) The law intends to ensure the comfort and privacy of people using public washrooms and change rooms. Controversy erupted following the passage of this legislation as critics point to the quandary this creates for transsexual persons, those who either transitioned via sex reassignment surgery or those who identify and live as a person opposite to the sex they were at birth. The quandary is which public washrooms and change rooms are transsexual persons to use under the new law?

Paul Stam, a Republican member of the North Carolina House of Representatives and sponsor of the legislation, defends the new law noting “in North Carolina, you can have your birth certificate changed if you do reassignment surgery. It has been reported several places that we said it’s your sex as designated at birth (that government agencies will use to define who can use bathrooms or changing facilities). And that is not correct. … It’s not what you are at birth. It’s based on your birth certificate, which can be changed.” (as cited in CNN) Also, the law allows for the installation of unisex (single occupancy) public washrooms and change rooms to accommodate transsexual persons who have not undergone sex reassignment surgery, stating:

Accommodations Permitted. – Nothing in this section shall prohibit local boards of education from providing accommodations such as single occupancy bathroom or

changing facilities or controlled use of faculty facilities upon a request due to special circumstances, but in no event shall that accommodation result in the local boards of education allowing a student to use a multiple occupancy bathroom or changing

facility designated under subsection (b) of this section for a sex other than the student’s biological sex. (Public Facilities Privacy & Security Act )

This controversy over public washrooms and change rooms in North Carolina, particularly the emphasis on biological sex, reminds me of something I read in a criminology textbook when I studied sociology at Queen’s University in the 1980s. What I remember is an anecdote about Cesare Lombroso, a pioneering criminologist and professor of legal medicine and public hygiene who lived in Italy in the 19th century. The Italian government turned to Professor Lombroso for a solution to a pressing problem regarding public health and sanitation: people were urinating openly in public spaces. Professor Lombroso recommended the passage of laws against urinating in public. He urged that the Italian government clamp down on this behaviour firmly in imposing penalties (presumably fines and imprisonment) for offenders, to stop it. This was viewed by one of the graduate students Professor Lombroso supervised as a heavy-handed approach to dealing with the problem and difficult to enforce. The student politely interjected, suggesting why not address the issue in building public toilets.

The portion of the North Carolina law that allows for the installation of single occupancy unisex washrooms alongside men’s and women’s washrooms and change rooms is a sensible course of action. It addresses the issues of comfort and privacy for everyone using public washrooms and change rooms fairly. Dalhousie University in Nova Scotia added such washroom facilities to its campus, pointing out “single-person, gender-neutral washrooms provide privacy to any individual who requires it, no matter their reasons. They are the best solution to ensure access and to eliminate barriers for all persons, no matter what their gender, ability, health status, or shyness.” (Dalhousie University) The portions of the law that fixate on biological sex and birth certificates are superfluous and only set off an unnecessary moral panic and a very adverse reaction across the entire country. The perception is the law in its current form unjustly discriminates against transsexual persons. Indeed,  people are concerned about their comfort and privacy when using public washrooms and change rooms, but find the arbitrary and discriminatory nature of the law objectionable. Given this reality, one hopes North Carolina’s legislators will see fit to repeal the law and replace it with legislation that is workable and does not discriminate against transsexual persons unjustly.

Posted by Geoffrey