Social inclusion, toilet rights, and legal protection for transgender Americans

August 31, 2016
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Public toilets have long been at the forefront of human rights advocacy in the United States. During the past year, the transgender community and parents of young children who identify with a gender other than their birth sex have successfully advocated for laws requiring gender-neutral toilet rooms to ensure greater privacy. This expansion of the human right to use a toilet has been met with counter measures in a number of states and local jurisdictions. Currently on the books or in the courts are a number of discriminatory “bathroom bills” that require people to use the men’s or women’s according to the sex stated on their birth certificates. In turn, the Obama administration and civil rights organizations have taken measures to block these discriminatory measures and uphold the equal rights guaranteed by federal legislation.

All-Gender-All-Spendor_Where-Excuses-Go-to-Die-300x300The controversy regarding transgender rights and toilets is a developing American story.  But it’s bewildering to follow, especially for many living outside the United States. The lead moderator of the 7070-user strong Sustainable Sanitation Alliance Forum, therefore, has asked PHLUSH to provide an overview of the issues. To introduce the current situation, we’ve created a simple historical timeline of measures related to toilet access taken by federal, state, and local governments and by citizen advocates. As we receive updates and readers’ comments and questions, we will further investigate these important issues.

Toilet availability is a human right. For more than a decade we here at PHLUSH have advocated direct access all-gender toilet rooms. Not only do they protect LGBT people, they offer comfort and safety to children and adults with opposite sex caregivers, to people with visible and invisible disabilities, and to everyone else. Moreover, “potty parity” –   equal or equitable provision of washroom facilities for women and men within a public space – is inherent in stalls so designed.

1896  The United States Supreme Court, in a decision known as Plessy v. Ferguson, upheld a Louisiana state law that allowed for “equal but separate accommodations for the white and colored races.”

Version 21950s   Separate toilets for white and black people throughout the American South persist thanks to racially-motivated “Jim Crow” laws in states and local communities.

1954  In the Brown v. Board of Education decision, the US Supreme Court rules that separating children in public schools on the basis of race is unconstitutional.  This overturns the Plessy v. Ferguson decision that had provided for “separate but equal” facilities.

1960s  The American civil-rights movements expands to toilets for other groups. Physically disabled people, including many in wheelchairs, fight for their right to access public facilities, including toilets. As women flood the workforce and are elected to office, they fight for restrooms in factories, offices, and in the US Congress and state capitols.

1968  The federal government passes the Architectural Barriers Act which leads to ramps, curb cuts, and other modifications that allow people safer access to and in government buildings and toilets.

March Fong Eu1969  California Assemblywoman March Fong Eu sledgehammers a toilet on the steps of the State Capitol in Sacramento to protest the growing practice of pay toilets. Eu noted the unfairness of women having to pay a dime ($0.10) to enter a toilet stall while men used urinals for free.

1970s  The struggle for LGBT rights (the rights of lesbian gay bisexual and transgender people) gains momentum. The decriminalization of homosexual behavior begins at the local level. In the same decade, new laws require architectural modifications in private buildings and restrooms. Anti-pay toilet advocacy gains momentum.

latest1970   The Committee to End Pay Toilets in America (CEPTIA) forms to protest the 50,000 US toilets now fitted with coin operated locks. Thanks to this uniquely successful campaign, pay toilets are outlawed in California and then New York. Eventually, it shifts public attention from basic human rights and economic inclusion to the gender issues which propel the women’s movement of the 1970s.

1977    More than two decades after the 1954 Brown v. Board of Education, the case of James v. Stockham shows that African Americans were still striving for fair restroom access.

1987 California passes the nation’s first law requiring “potty parity” – the equitable provision of washroom facilities for women and men. The bill was introduced by State Senator Art Torres who tired of waiting for his wife to use the restroom at events. It recognizes that clothing design, male anatomy, and doorless urinals give men a speed advantage and that women’s rooms require more fixtures to serve the same number of users.

1990 The Americans with Disabilities Act (ADA) becomes federal law. It specifies accommodation required by people with many types of disability and provides additional design requirements for restrooms.

1992  First women’s restroom adjacent to the US Senate floor opens.

2000s  Americans become aware of that a minority of their fellow citizens cannot identify with their biological sex. Advocacy by transgender youth, the parents of transgender children and community supporters leads to new awareness of gender dysphoria and human rights. Many universities, colleges, and schools change policies and practice to protect the safety and privacy of all restroom users. At the same time, fear of terrorism plus escalating costs of maintenance and security results in additional closures of public toilets in cities across the US.

2003  The Sylvia Rivera Law Project, an organization dedicated to ending poverty and gender identity discrimination, produces Toilet Training, a documentary film and guide that uses stories of people who have been harassed, arrested or beaten for trying to use bathrooms in public places, in schools, and at work.

2007   PHLUSH (Public Hygiene Lets Us Stay Human) issues its Design Principles for Public Restrooms. These include provisions for toilet stalls that serve all users, including homeless people and those who do not conform to gender stereotypes. The group calls on the City of Portland, Oregon to ensure that public toilets are designed to remain open 24/7.

PottyParitySmall2009  Twenty states in the US now have “potty parity” laws. Since women require more time  to urinate than men, some laws specify a 1:2 or 1:3 ratio for men’s to women’s toilets.

2010 The United Nations Resolution 64/292 explicitly recognizes the human right to water and sanitation and acknowledges that these are assumed embedded in all other human rights.

2010s The second decade of the 21st century sees transgendered people win a series of significant victories as they stand up for their human right to safe restrooms.

Catarina-de-Albuquerque.jpg-300x1992011  United Nations Special Rapporteur on the Human Rights of Water and Sanitation, Catarina de Albuquerque, visits the United States and reports on her Mission to the United States.  to the UN General Assembly on Americans lacking access to toilets and basic hygiene.  She documents the lack of access to toilets by homeless citizens of Sacramento, California, and by Hispanic agricultural workers.

July 2011  A restroom is created adjacent to the U.S. House of Representatives to serve the growing proportion of female members.

2013 The State of California calls for gender-neutral toilets. Assembly Bill 1266 – the School Success and Opportunity Act – states that “a pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

Version 22014  Housing shortages and foreclosures result in increased numbers of unhoused Americans living on urban streets without toilets.  At the same time, public urination is often considered a crime. In some local jurisdictions, it’s a livability misdemeanor that results in arrest and a fine the poorest of the poor can ill afford. In other jurisdictions, meeting this essential biological function on public land constitutes indecent exposure and is considered a sex offense with unusually negative consequences.

2015 In response to successful advocacy by LGBT communities and others, the cities of Philadelphia, Boston, Seattle, and Portland pass new toilet laws.  The safer, more private facilities are variously called “gender-neutral”, “all-gender”, and “all-user.”

February 22, 2016  The City of Charlotte, North Carolina, home to the state university, passes an ordinance to protect residents against discrimination based on their gender identity or sexual orientation.

March 23 2016  In an attempt to stop the Charlotte law, The Legislature of the State of North Carolina, passes House Bill 2 (HB2) and Governor Pat McCrory signs it into law. This “Public Facilities Privacy & Security Act” does the following:

  • Prevents public schools, colleges, and government agencies in North Carolina from allowing transgender people to use bathrooms or changing rooms that match their gender identity. Institutions must force people to use facilities that correspond to the sex listed on their birth certificate.
  • Takes away the power of city councils to pass laws protecting residents from discrimination based on gender identity and sexual orientation in workplaces and places open to the public.
  • Removes existing local laws that protect against discrimination based on sexual orientation or gender identity or related to worker wages and benefits
  • Takes away a person’s right to sue for discrimination at the state level.

HB2flyer.1pdfApril  2016  To protest the HB2 “bathroom bill”, PayPal cancels a project to bring 400 jobs to North Carolina. Deutsche Bank and other businesses follow suit.  State, county and local governments pass  laws banning business in North Carolina.  Musicians cancel concerts, organizations conferences, and teams sporting events.  The Transgender Law Center demonstrates that the law is an assault on basic human rights.

May 9, 2016  The United States Department of Justice sues North Carolina Governor Pat McCrory, the North Carolina Department of Public Safety, and the University of North Carolina system over HB2. Attorney General Loretta Lynch says it violates Title VII of the Civil Rights Act, Title IX of the Education Amendments of 1972, and the Violence Against Women Act.

May 9, 2016 On the same day, Gov.McCrory and North Carolina’s legislative leaders file two separate lawsuits against the US Department of Justice to defend HB2.

May 13, 2016 The Obama administration, through the US Department of Justice and Department of Education, releases a letter arguing that schools that receive public funding are expected to comply with Title IX, which prohibits “sex discrimination in educational programs and activities operated by recipients of federal financial assistance.”

May 25, 2016  Eleven US states announce a lawsuit challenging the US Administration directive to US public schools to let transgender students use the bathrooms and locker rooms that match their gender identity. Oklahoma, Alabama, Wisconsin, West Virginia, Tennessee, Maine, Arizona, Louisiana, Utah and Georgia are asking a judge to declare the directive of the Obama administration unlawful.

June 20, 2016 North Carolina’s Charlotte-Mecklenburg school district asks principles to respect students’ gender identity by calling them by their chosen names and pronouns (he, she, them, etc) they choose and to respect their choices in restrooms, locker rooms, yearbooks and graduation ceremonies. In ignoring HB2, the school district points to an April 2016 ruling of the 4th US Circuit Court of Appeals.

July 1, 2016  Ten additional states sue the Obama administration over its requirement that public schools must let transgender students use toilets and locker rooms that match their gender identity.  The states are Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota and Wyoming.

July 13, 2016  Transgender restroom rights reach the US Supreme Court for the first time. A Virginia school district filed an emergency application to prevent transgender boy from using the boys’ bathroom. In April the 4th US Circuit Court of Appeals had ruled in favor of a 17-year old Gavin Grimm, finding that transgender students are protected under federal laws that bar sex-based discrimination; the Supreme Court concurred.

August 26, 2016  U.S. District Judge Thomas Schroeder bars the University of North Carolina from enforcing HB2 in response to a request for an injunction from transgender students.

September 29, 2016 California Governor Jerry Brown approves State Assembly Bill 1732 requiring “all single-user toilet facilities in any business establishment, place of public accommodation, or government agency to be identified as all-gender toilet facilities.”

October 28, 2016  The U.S. Supreme Court announces it will decide whether transgender Virgina high school student Gavin  Grimm can use the boy’s restroom.  This will be the Court’s first deliberation on whether a 1972 law that bans discrimination of the basis of sex also includes a ban on discrimination based on gender identity.

December 21, 2016  After North Carolina legislators announce intention to repeal HB2, political gridlock lets stand the discriminatory state law responsible for enormous loss of business and the defeat of Republican Governor Pat McCrory.  Democratic Governor-elect Roy Cooper explains what happened.  Watch short video HB2: A Timeline of North Carolina’s controversial law.

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    Public Hygiene Lets Us Stay Human (PHLUSH) was founded in Portland, Oregon and today collaborates with groups across North America.

    PHLUSH is a member of the World Toilet Organization and a partner in the Sustainable Sanitation Alliance.

    Our Mission Through education and advocacy, PHLUSH helps local governments and citizen groups to provide equitable public restroom availability and to prepare for a pipe-breaking seismic event with appropriate ecological toilet systems.

    Our Vision Toilet availability is a human right and well-designed sanitation systems restore health to our cities, our waters and our soils.

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