Lately the transgender community’s push for more gender-neutral
public restrooms has drawn a fair amount of attention, support, and
criticism. The proliferation of unisex bathrooms seems like a
logical solution to the tricky problem of figuring out who gets to
pee where. Providing restrooms where all are welcome shouldn’t be
compulsory; there are both logistical and ideological reasons why
such a mandate is a bad idea. But what’s holding us back from
opening up more restroom doors?

Despite what you might think, public restrooms have not always
been gender segregated. “Historically, shared public latrines have
been a feature of most communities, and this continues to be true
in developing countries such as Ghana, China, and India,” note Olga
Gershenson and Barbara Penner in their 2009 book of essays
Ladies and Gents: Public Toilets and Gender (Temple
University Press). “Private, sex-segregated lavatories were a
modern and Western European invention, bound up with urbanization,
the rise of sanitary reform, the privatization of the bodily
functions, and the gendered ideology of separate spheres.”

According to sociology and sexuality studies professor Sheila
Cavanagh, the first separate toilet facilities for men and women
appeared at a ball in Paris in 1739. Until then public restrooms,
such as they existed, were generally gender neutral or marked for
men only.

The earliest efforts to legislate gender segregation in the
United States were due to a lack of women’s facilities in
workplaces. In 1887, Massachusetts was the first state to pass a
law mandating women’s restrooms in workplaces with female
employees. By the 1920s, most states had passed similar laws.

These days, America’s public restrooms are regulated by two
separate federal agencies. Workplace restrooms are the purview of
the U.S. Department of Labor, which sets state guidelines through
the Occupational Safety and Health Administration (OSHA).
Non-workplace public restroom guidelines are governed, broadly, by
the Department of Health and Human Services.

More specific regulations are largely enacted through state and
municipal building codes. These codes dictate exactly how many
toilets and/or urinals buildings, businesses, and other public
entities must provide-in separate men’s and women’s facilities.

“Restrooms are still almost exclusively gendered,” wrote
Shaunacy Ferro at Fast Company in April. “It’s a form of
exclusion that’s written into state building code, presenting an
obstacle for gender neutral bathroom advocates.”

In many places, businesses are legally prohibited from
offering only gender-neutral restrooms. A small restaurant, coffee
shop, or bar with only two (separate, enclosed) toilets must
designate one for women and one for men. New York City only made it
permissible in 2012 for restaurants and coffee shops with just two
water closets to make these unisex, and only then for places with a
total occupancy of 30 or fewer. (Washington, D.C., is one of the
few places where it’s actually illegal to designate
single-occupancy restrooms as male- or female-use only.)

“Even in public spaces, such as restaurants, where two single
occupancy, self enclosed toilet facilities are all that is provided
to customers, signs designate one ‘Stallions’ and the other
‘Fillies,’ one ‘Pointers’ and the other ‘Setters,’ or, more
prosaically, one ‘Ladies’ and the other ‘Gents,'” writes University
of Chicago law professor Mary Ann Case, in a 2010 article titled
“Why Not Abolish the ‘Laws of Urinary Segregation’?”

Most state and local bathroom building codes are modeled on one
of a few sets of international guidelines, such as the Uniform
Plumbing Code or the International Building Code (IBC). Pursuant to
these codes and state “potty parity” laws, public places are
required not only to offer gender-segregated facilities but to
offer a certain number of men’s and women’s “fixtures.” For
purposes of the fixture count rules, a building’s total occupancy
is considered to be half male and half female.

Under the potty parity laws-first passed in California in 1987
and now implicitly incorporated into building code
guidelines-public places are required to offer either an equal
number of men’s and women’s “water closets” or, more frequently,
two female toilets for each male toilet or urinal. Alaska has
adopted a 2.7 to 1 ratio; Pittsburgh 3.75 to 1; Texas and Tennessee
2 to 1.

The widely-adopted IBC bathroom code relies on a complicated
formulation based on occupancy and type of establishment (in
stadiums with fewer than 3,000 seats, one water closet for every 75
males and 40 females in the first 1,500 seats and one for every 120
males and 60 females thereafter; one toilet per 40 occupants of any
gender in restaurants, banquet halls, and food courts; at movie
theaters, one male toilet for every 125 potential male occupants
and one female toilet per every 65 potential female occupants, and
so on).

In many places, this bathroom code labyrinth is further
complicated by codes from different eras regulating different
buildings. In New York City there is a 1938 code, a 1968 code, and
a 2008 code, all with different bathroom requirements that apply to
buildings based on when they were built. In addition to being
confusing, it may disincentivize bathroom renovations, since
keeping original bathroom fixtures allows buildings to continue
following older building codes but updates require meeting updated
regulations, too.

Right now, the most prominent advocates for gender neutral
bathrooms are transgender individuals and allies. But efforts to
integrate toilets have been carried out by different groups over
time, and could also benefit diverse constituencies.

Unisex bathrooms “relieve a number of anxious dilemmas, such as
that of a mother sending her young son alone into the men’s room
without her, the adult son waiting outside the door of the women’s
room for his Alzheimer’s afflicted mother to emerge, and the
wheelchair bound husband left to navigate the handicapped stall in
the men’s room without the help of his wife,” Case notes. Not to
mention women who routinely face longer public restroom lines, 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.

There are “feminist, as well as practical efficiency payoffs” to
unisex bathrooms, adds Case. “Individuals will not be forced to
conform to any standard of what it is appropriate for a man or for
a woman to look like in order safely to enter a public
restroom.”

Indeed. Existing buildings shouldn’t be forced into expensive
renovations to desegregate gendered bathrooms; nor should we have
regulations requiring all places to give up gender-segregated
facilities. But doing away with existing laws that force bathroom
segregation could go a long way.