Public Restrooms and the Distorting of Transgender Identity

The sex-separated public restroom, a ubiquitous feature of our built environment, has been at the vortex of litigation filed by state officials across the country challenging the Obama administration’s attempt to assure that transgender people have access to safe restrooms. Tracing the ongoing federal litigation in North Carolina surrounding the passage of House Bill 2, this Article argues that this seemingly mundane architectural space has in fact driven the litigation strategies of all parties to these cases. In insisting that access to public restrooms be based on biological sex, state officials rely on an outmoded nineteenth century cultural vision of women as weak and vulnerable, and therefore in need of a separate restroom to protect them from predatory men in the public realm. In contrast, in a bold attempt to protect transgender people, the Obama administration took for granted that public restrooms should be sex-separated. The administration insisted, however, that individuals be permitted to access the men’s or the women’s facility based on their gender identities. In so doing, the federal government ignored that gender identity is not binary and, accordingly, that there are individuals for whom there is no safe, accessible restroom in public places. This Article concludes by proposing that sex-segregated public restrooms be replaced by all-gender, multi-user facilities that protect the privacy and safety concerns of all patrons, while discriminating against no one