Anika C. Allan
Anika C. Allan is a reviewer for the Journal of Integrated Studies and a student in Athabasca University's MA-IS program.
ABSTRACT
Since 2016, the ‘Bathroom Debates’ have gained increased media and legal attention throughout the Western world. These debates are tied closely to ‘Bathroom Bills’ (which seek to enforce multi-user restroom segregation based on ‘biological sex’) but the discourse and repercussions extend beyond the legal and political sphere. Many people with significant platforms in entertainment, news, and social media are actively influencing macro and micro decisions and responses regarding gendered restroom segregation. In this article, the author categorizes the main arguments made in the Bathroom Debates; critically analyzes the meaning and wider impacts of the arguments; and concludes that the arguments for cisgender restroom segregation are the most disingenuous and baseless. Contrastingly, the author demonstrates that many of the arguments in support of gender-inclusive multi-user restrooms have higher relative validity than the primary arguments in favour of multi-user restrooms segregated based on assigned sex identities.
Keywords: Bathroom Debates, trans, non-binary, J. K. Rowling, gender
On June 6, 2020, J. K. Rowling (known for the Harry Potter and Fantastic Beasts series) famously made a comment on Twitter implying that all people who menstruate are women, prompting immediate backlash (Madani, 2020; McNamara, 2020; Wallis, 2020). Many transgender rights advocates and supporters, including lead actors from her films, were quick to label her comment as transphobic and uninformed because many trans men and non-binary gendered people menstruate, and many ciswomen do not menstruate (Madani, 2020; Wallis, 2020). Four days later, Rowling attempted to repair the damage by explaining her views in a blog post on her website (Rowling, 2020). Whilst she shared her ‘empathy’, ‘solidarity’, and ‘kinship’ for transgender people, she also shared her concerns that the transgender rights movement is pressuring people to transition prematurely and will make ‘natal girls and women’ unsafe in restrooms and changing rooms (Rowling, 2020). Inherent throughout the blog post and later social media posts was Rowling’s apparent belief in gender essentialism . The continued backlash following this blog post notably helped to bring the ongoing Bathroom Debates (defined in the next section) back to the forefront of ongoing international conversations in the news media (Madani, 2020; McNamara, 2020; Rowling, 2020; Wallis, 2020), which eventually proceeded into a renewed onslaught of bathroom bills and other anti-trans bills in various US states in 2020 and 2021 (Davis, 2021; Hensley-Clancy, 2021; Levin, 2021; Mattise et al., 2021; Timms, 2021).
The Bathroom Debates have sparked mass controversy across Western, English-speaking countries , primarily based on the pitting of transgender and non-binary gender rights against gender essentialist assumptions (Barnett et al., 2018; Levi & Redman, 2010; Jones & Slater, 2020). There are a wide variety of arguments in these debates that support different restroom configurations regarding gender, and the contention largely results from the importance of public toilets in Western society (Jones & Slater, 2020; Kafer, 2016; Murbi, 2020; Spencer, 2019). In this paper, I will argue that the core arguments in support of Assigned Female at Birth / Assigned Male at Birth (AFAB/AMAB) restroom configurations are less valid than the core arguments in support of Inclusive Female Gender / Inclusive Male Gender (IFG/IMG) and Gender Neutral (GN) restroom configurations with respect to the pertinent concepts of safety, equality, and gender.
The first section of this paper will provide relevant context, history, and working definitions to help the reader to contextualize the paper. The second section will provide a literature review of common arguments presented in the Bathroom Debates, divided into appropriate categories. The third and fourth sections will provide critical analyses of the arguments and conclusions in support of my main argument. The final section will include brief comments on the goals of this paper and suggestions for further research.
In the following subsections, I will provide a brief history of public restrooms and the Bathroom Debates, key assumptions underlying the framework of this paper, and working definitions of key concepts and populations involved in my arguments. These overviews are intended to prime the reader to visualize the framework that this research paper is built on.
The first Western public segregated restrooms were built in Paris in the 1700s (Barnett et al., 2018, p. 233; Davies et al., 2019). London’s first public restroom facilities were installed in 1851 for men, and women were purposefully prohibited from using these facilities in an attempt to restrict women’s freedoms outside of the home. It took 40 years before women finally gained access to gender-segregated restrooms (Jones & Slater, 2020, p. 836). America’s first gender-segregated restrooms were installed in the 1800s (Barnett et al., 2018; Colker, 2017). According to Barnett et al. (2018), “[c]ontrary to widespread opinion, the rationale for sex-segregated restrooms [was] not rooted in biology and anatomical differences” (p. 233) but instead aimed to maintain the separation between men’s and women’s separate social ‘spheres’ and provide women with ‘protective havens’ as women began to spend more time outside of the home. Importantly, these first restrooms were not inclusive of all people and were frequently inaccessible to many people because of class, race, and dis/ability (Davies et al., 2019; Jones & Slater, 2020). Since the first gender-segregated restrooms were installed, there has been a lot of progress with respect to accessibility and inclusion in Western restrooms. Human rights now dictate that restrooms are supposed to be provided equally for everyone, regardless of any social identity or dis/ability, although this is not always the case in practice (Levi & Redman, 2010; United Nations, n.d.b). However, one persisting barrier to equal restroom access is the segregation of restroom users based on gender or assigned ‘sex’, partly because of a ‘notion that women need to be protected’ (Barnett et al., 2018). This barrier is particularly meaningful to transgender and non-binary gendered restroom users, who already face oppression in many other societal sectors (Davidson, 2016; Kattari et al., 2020; Levi & Redman, 2010). Other common barriers include unequal distribution of equipment and unequal accessibility between ‘male’ and ‘female’ designated facilities, a lack of accommodations to facilitate access for users with dis/abilities, and the provision of baby changing tables in ‘female’ designated facilities and not ‘male’ designated facilities (Colker, 2017; Hamraie, 2018; Plaskow, 2008). Hence, restrooms are often still exclusionary and inaccessible in a variety of ways, and so it is time to revisit how or if multi-user restrooms should be divided and equipped
The Bathroom Debates, also sometimes known as the ‘Toilet Debates’ (Jones & Slater, 2020), are the primary focus of this paper. These debates primarily revolve around how or if restrooms should be segregated by gender (Jones & Slater, 2020). These debates have been ongoing across Western countries for decades (Colker, 2017; Levi & Redman, 2010), but they gained international traction in 2016 after a ‘Bathroom Bill’ was passed in North Carolina, US, making it illegal for anyone to use a gendered restroom that did not coincide with the sex on their birth certificates (Jones & Slater, 2020). Many other bills have followed in the US and the UK with minimal success, and many debates in social and news media platforms have erupted across Western countries following the North Carolina Bathroom Bill (Barnett et al., 2018; Jones & Slater, 2020; Murib, 2020). In particular, ‘gender-critical’ feminists have been outspoken in their support of AFAB/AMAB restrooms and in their opposition to GN and IFG/IMG restrooms (Jones & Slater, 2020).
These debates are significant in how they impact transgender and non-binary gendered populations. The outcomes dictate which restrooms these populations are allowed to occupy and the consequences for non-compliance, and the discourse puts these populations in the international spotlight, increasing gender surveillance in restrooms (Jones & Slater, 2020). Correspondingly, “conservative activists have narrowed the bathroom argument to focus primarily on transgender people. That focus has intensified . . . as more . . . states have added gender identity and expression as explicitly protected characteristics” (Levi & Redman, 2010, pp. 140-141).
Key underlying assumptions that have guided my reasoning in this essay include the following: (1) The otherwise unmentioned primary theoretical frameworks informing my analysis in varying ways include intersectionality theory and critical theory. (2) I have included news articles from prominent news sources known for fact-checking to support the salience of this topic, and my underlying assumption is that these articles provide a generally accurate depiction of the described events. (3) The categorizations I have imposed on the common arguments in the Bathroom Debates provide a generally accurate depiction of the arguments in relation to one another and to the concepts of equality, safety, and gender. (4) There is minimal controversy surrounding gender-inclusive single-user restrooms, which is why this paper is focused on multi-user restrooms.
In this paper, I categorize all gender identities under three umbrella terms (transgender, non-binary gender, and cisgender) for simplicity. However, I recognize and respect that each of these groups is heterogeneous and that the individuals in these groups may prefer different labels. Chandler and Murray (2020c) define transgender as “[p]ertaining to people whose self-identified sexual identity or gender identity does not correspond to the biological sex to which they were assigned at birth” (para. 1). Heery and Noon (2017) define non-binary gender as “categoriz[ing] a person who self-identifies as neither gender, perhaps because they shift between gender identities, or have more than one gender identity” (para. 1). Lastly, Chandler and Munday (2020a) define cisgender as “people who identify their sex as that to which they were assigned at birth” (para. 1).
Equality is considered to be a progressive and prized ideal by many countries around the world (Blackburn, 2016; OECD, n.d.a; United Nations, n.d.a). However, what constitutes equal treatment or equal subjects is widely debated (Blackburn, 2016; Gosepath, 2007). Typically, equality is based on some shared quality, trait, or treatment that is relevant to the context (Blackburn, 2016; Gosepath, 2007). In this paper, discussions of equality will be focused on how the legal systems in English-speaking Western countries like the US can use principles of equality to include and exclude people from certain restrooms.
Safety is omnipresent in legal discussions and documents, even though its definition is not substantive (Cane & Conaghan, 2009). Merriam-Webster (n.d.) defined safety as “the condition of being safe from undergoing or causing hurt, injury, or loss” (para. 1). However, Cane and Conaghan (2009) demonstrated that the critical facets of this definition are abstract and challenging to describe or prescribe, making it particularly problematic to address the theme of safety, which is central to most of the arguments presented in this paper.
Many of the arguments against gender inclusion in restrooms rest on the popular gender binary model. The gender binary dictates that there are two normative sets of traits and behaviours, with one being feminine and the other being masculine, and each person is expected to adhere to one of these (Griffin, 2017). The gender binary is often tied conceptually to the sex binary and, therefore, to gender essentialism (Davies et al., 2019, p. 866). Gender essentialism and the gender binary are subsumed under the umbrella of heteronormativity, which further presumes that men and women have naturally separate but complementary roles in society and that all people are naturally heterosexual (van der Toorn et al., 2020, p. 160). Heteronormativity is systemic in society and ‘is both descriptive and prescriptive’ (van der Toorn et al., 2020, p. 160).
It is noteworthy that the above concepts of gender and heteronormativity are problematic because they wrongly imply that humans can be divided into two homogeneous and opposing groups (Butler, 1990; Morgenroth & Ryan, 2018; van der Toorn et al., 2020). Instead, both gender and sex exist on different spectra, resulting in multiple heterogeneous and intersecting groups (Ainsworth, 2015; Fausto-Sterling, 2000; Kessler, 1990; Morgenroth & Ryan, 2018, 2020; Murib, 2020; Roughgarden, 2013).
The following subsections will provide overviews of common arguments in the Bathroom Debates from the literature that support and oppose the AFAB/AMAB, IFG/IMG, and GN restroom configurations defined above. I have categorized each of the arguments based on which group or tradition the proponents/opponents are seeking to protect. A table is provided at the end of this section to demonstrate how each argument relates to the other arguments.
It is a common stereotype that men are filthy and urinate all over restrooms and that women are clean and leave restrooms tidy, which supports the assumption that women might be disgusted and annoyed at the prospect of sharing restrooms with men (Kafer, 2016). Kafer problematizes this notion by providing evidence that women’s restrooms frequently feature unflushed toilets with urine all over the seats due to a common practice of ‘hovering’ over the toilet seat and refusing to touch the flushing handle. Moreover, Kafer demonstrates that this argument is often used in conjunction with gender essentialist assumptions as a reason to exclude transgender and non-binary gendered individuals from restrooms. When reading between the lines, this rationalization communicates that the comfort of cisgender women is supposedly more important than the comfort and inclusion of transgender and non-binary gendered individuals (Kafer, 2016).
One of the most common arguments against GN and IFG/IMG restrooms is the argument to protect women from harm (Barnett et al., 2018; Levi & Redman, 2010; Spencer, 2019). “[T]he security of women’s toilets is . . . recognized as precarious, due to their potential misuse, wherein ‘people are undressed, vulnerable, and engaged in a private act” (Jones & Slater, 2020, p. 838). The most common arguments in this category assert that GN and IFG/IMG restrooms make it easier for men to commit gender ‘fraud’ by cross-dressing as women and/or becoming women so that they can take advantage of women in restrooms (Barnett et al., 2018; Kafer, 2016; Spencer, 2019). These assertions are unfounded and harmfully imply that transgender people (usually trans women) are ‘sexually threatening’ ‘predators’ (Barnett et al., 2018; Hasenbush et al., 2018; Kafer, 2016; Levi & Redman, p. 144).
The imagery that typically accompanies these assertions about trans women and cross-dressing cisgender men in anti-gender-inclusive restroom propaganda reinforces the harmful stereotype that trans women are predators (Levi & Redman, 2010). For example, propaganda videos and memes frequently show imagery of men (sometimes dressed in feminine clothing) that look ‘threatening’, sharing restrooms with women and often staring at them (Levi & Redman, 2010; Spencer, 2019). One harmful message conveyed by this propaganda is that “policies that permit trans people to use the restroom of their choice or trans students’ requests to do so in school constitute an unreasonable and dangerous assault on logic and order, and especially on White, cisgender women and girls” (Spencer, 2019, p. 547). This message ultimately functions to increase harassment and fear towards trans women, and particularly trans women of colour (Barnett et al., 2018; Davies et al., 2019; Griffin, 2016). A second harmful implication of this propaganda is that the observer gets to decide the gender identity of each person that goes into the restroom (Spencer, 2019, p. 555). This implication functions both to increase gender surveillance in restrooms and to perpetuate gender essentialist beliefs that trans women are, in fact, men (Spencer, 2019, p. 555). (Repetitive with respect to the previous sentence. Consider changing?) gender surveillance in restrooms and to perpetuate gender essentialist beliefs that trans women are, in fact, men (Spencer, 2019). Finally, a third harmful implication of this propaganda is that it garners fear that GN and IFG/IMG restrooms are inherently dangerous, and so large groups of people launch fear-based campaigns to enforce AFAB/AMAB restrooms (Barnett et al., 2018; Levi & Redman, 2010).
This positioning of trans women as violent predators is ironic, as they are the victims of ‘vastly more violence in public restrooms than they commit’ (Ahmed, 2016; Barnett et al., 2018; Jones & Slater, 2020; Spencer, 2019, p. 543). In fact, in their study, Barnett et al. stated the following about instances of trans women committing crimes in restrooms in places with ‘transgender-friendly restroom laws’ in the United States:
“We were able to locate only one report of a transgender individual committing a sexual offense (taking photos) in a dressing room. Instances of cisgender men dressing as women to gain access to women in various stages of dress also appear to be an extremely rare phenomenon based on our review. Of the incidents in which cisgender males dressed as women to gain access to female facilities, 11 occurred in restrooms and 7 occurred in other female facilities.” (Barnett et al., 2018, p. 236)
Hasenbush et al.’s (2018) study builds on this data by demonstrating that introducing gender-inclusive laws did not result in an increase in crimes committed in restrooms, changing rooms, or locker rooms and that in some places, the laws resulted in a decrease in these crimes. However, ‘politicians gain political capital’ by perpetuating the impression that gender-inclusive restrooms are dangerous, thus creating a ‘moral panic’ amongst their electorate (Spencer, 2019, p. 546). As a result, these arguments that centralize the safety of cisgender women are often central to policies that will impact the configuration of bathrooms (Levi & Redman, 2010; Barnett et al., 2018) and, therefore, are of particular interest in this paper.
“For many ‘gender-critical’ feminists, the walls of women-only facilities have come to symbolize the boundaries of womanhood: a ‘safe’ space where the terms of inclusion are vehemently regulated and protected” (Jones & Slater, 2020, p. 835). This purportedly ‘safe’ space is intended to allow women to escape societal ‘scrutiny’, nurture ‘unity and solidarity’, and take ‘refuge’ from ‘a male-dominated public sphere’ (Jones & Slater, 2020; Kafer, 2016). For those that believe in gender essentialism and heteronormativity, such as gender critical feminists, the inclusion of cisgender men in GN restrooms and the inclusion of transgender and non-binary gendered individuals in gender-segregated public restrooms is threatening to these ‘boundaries of womanhood’ (Jones & Slater, 2020; van der Toorn et al., 2020). However, this argument ignores the fact that not all ciswomen feel safe, supported, or welcome in AFAB/AMAB restrooms (Plaskow, 2008), and this argument assumes that transgender and non-binary gendered individuals have fewer rights to feel safe, supported, or welcome in restrooms than cisgender women (Jones & Slater, 2020).
‘Victim-blaming’ Arguments. The premise of these arguments, which are in favour of AFAB/AMAB restrooms, is that people can be incited to violence if they believe a transgender person is using the ‘wrong’ restroom (Levi & Redman, 2010). These arguments claim to centre the best interests of transgender and non-binary individuals whilst contrastingly blaming them for causing someone to harm them (Levi & Redman, 2010). Furthermore, these arguments presume that transgender individuals would not incite violence by entering a restroom consistent with the sex assigned to them at birth (Levi & Redman, 2010). For example, in a Maine court case where the defendants wished to ban a transgender individual from using the gendered restroom consistent with their gender identity, “the defendants ignored the very real safety risks involved in forcing a female-identified person to use the men’s room and had no data upon which to rely to advance their arguments” (Levi & Redman, 2010, p. 145).
‘Social Justice’ Arguments. As opposed to the implications of the ‘victim-blaming’ arguments above, there is much evidence that transgender and non-binary gendered individuals are often unsafe in restrooms (Levi & Redman, 2010, Murib, 2020). Furthermore, AFAB/AMAB restroom enforcement laws may make transgender and non-binary gendered people even more unsafe in restrooms than they are now (Murib, 2020).
Transgender and non-binary gendered individuals experience high levels of harassment, violence, mockery, and other problems in restrooms even when there are gender-inclusive restroom laws (Barnett et al., 2018; Davies et al., 2019, p. 870; Levi & Redman, 2010). These high levels of confrontations and other issues commonly faced by transgender and non-binary gendered individuals in restrooms have resulted in the majority of these individuals avoiding using any public restrooms when possible (Barnett et al., 234; GLSEN, 2015; Ingrey, 2018; James et al., 2016). This avoidance has significant consequences, such as disrupting daily life activities, restricting opportunities, and causing health issues associated with holding in urine for extended periods (Murib, 2020, p. 155).
Despite this already-present lack of safety, the right of transgender and non-binary gendered individuals to access restrooms “is often held hostage by thoughtless and uninformed authorities” (Levi & Redman, p. 133). AFAB/AMAB restroom enforcement laws do not only induce individuals to enter a restroom consistent with the sex on their birth certificates, but they also involve repercussions for non-compliance (Murib, 2020). Hence, transgender and non-binary gendered individuals avoiding discomfort and confrontation by entering a restroom that is more consistent with their current identity and/or appearance may be charged with a crime (Murib, 2020). Murib describes multiple examples of crimes from proposed and passed legislation in the US that individuals using the ‘wrong’ restroom could be charged with. These crimes include indecent exposure (using the ‘wrong’ restroom to elicit sexual desire from other users) and harm/loss (the physical, monetary, or psychological damage caused to other users by encountering someone of an unexpected ‘sex’) (Murib, 2020, p. 166). Moreover, there have been proposals and at least one law passed requiring a sign on inclusive restroom doors warning users that ‘a person of the opposite sex’ may be present in the room (Levin, 2021; Murib, 2020). Murib explained that such signs could further fuel fears and stereotypes that transgender people are dangerous (p. 167).
Restroom configurations that fail to acknowledge or explicitly include transgender and non-binary gendered individuals function to both exclude and erase these individuals from society (Davies et al., 2019; Spencer, 2019). When transgender and non-binary individuals cannot access a restroom comfortably or try to avoid restrooms, this can impact their ability to keep a job, stay in school, run errands, and participate in other activities in public spaces, which interferes with their ‘rights to life, liberty, equality, health, privacy, and expression’ (Barnett et al., 2018; Levi & Redman, 2010). However, a more insidious impact is how restroom exclusions and the arguments for these exclusions serve to erase transgender and non-binary gendered people from societal view, shifting the focus of relevant discussions to the culturally dominant cisgender population (Davies et al., 2019; Murib, 2020; Spencer, 2019). This erasure, according to Butler, is always already facilitated by ‘cultural intelligibility’, wherein people who identify outside the gender binary are often subconsciously considered not to be human (Butler, 2004; Davies et al., 2019). As a result of dehumanizing erasure, transgender and non-binary individuals may face increased harassment and a lack of options for protecting themselves or standing up for themselves (Davies et al., 2019). Restroom configurations like IFG/IMG and (especially) GN restrooms that explicitly include all genders, therefore, may help to achieve the vital task of acknowledging the existence of transgender and non-binary gendered individuals (Jones & Slater, 2020; Murib, 2020).
Two interrelated problems that can be attributed to both AFAB/AMAB and IFG/IMG restrooms are forced identification and gender surveillance (Davies et al., 2019; Ingrey, 2018; Spencer, 2019). Forced identification occurs when an individual implicitly communicates a gender identity by entering a gendered restroom, and this is a problem when the individual is either unsure about their gender identity (this is often the case with gender-segregated restrooms in K-12 schools) or does not identify with a gender (Davies et al., 2019; Ingrey, 2018). Davies et al. explained how forced identification is particularly problematic for individuals that are still forming their identity because actions such as choosing between two gendered facilities can be pivotal in identity formation (i.e., coercing people to ‘choose’ or suppress a gender based on their restroom choice).
Gender surveillance is another prominent issue with restrooms segregated by gender, regardless of whether those restrooms are inclusive of anyone who wants to enter (Davies et al., 2019; Spencer, 2019). The act of publicly identifying oneself by the gender of the restroom one has entered signifies “an atmosphere of gender policing and regulation where individuals analyze and regulate the gender performances of others” (Davies et al., 2019, p. 868). In other words, even if a transgender or non-binary gendered person is relatively certain that they ‘pass’ as the gender label on the restroom door, they may often feel very uncomfortable or unsafe and as though they need to over-perform gendered behaviours (Davies et al., 2019). Furthermore, this surveillance carries with it the threat of violence, and so attempts to ‘pass’ are often associated with fear of retribution (Spencer, 2019). For example, trans men that urinate sitting down might “strategically alter the sound of their urinary flow in order not to be discovered by a potentially violent transphobe in the next stall” (Spencer, 2019, p. 545). Hence, these arguments support gender-neutral restrooms, which largely remove the need to publicly self-identify as one of two genders and the associated gender surveillance (Davies et al., 2019; Ingrey, 2019).
Many of the arguments supporting AFAB/AMAB restrooms function not only to protect the boundaries of the gender binary and heteronormative traditions but also to actively silence dissent and alternate viewpoints (Levi & Redman, 2010; Jones & Slater, 2020; Murib, 2020). For example,
“‘[g]ender-critical’ feminists prioritize the demonization and exclusion of trans people, even when this comes at the expense of improving toilets for all . . . trans people’s increased visibility is interpreted as dangerous because it holds the possibility of changing entrenched binary understandings of sex and gender.” (Jones & Slater, 2020, p. 847)
Moreover, traditional ideas of ‘manhood’, which ‘need . . . to be proven continuously and can be lost’ are considered by many to be threatened by individuals that identify outside of the heteronormative gender binary (Morgenroth & Ryan, 2020; van der Toorn et al., 2020). These arguments actively attempt to erase and exclude transgender and non-binary individuals because of how their collective visible existence defies heteronormativity and the gender binary. Similarly, Jones and Slater (2020) and Murib (2020) both posited that many laws enforcing AFAB/AMAB restrooms are more about protecting gender norms than women because oppositions to gender norms are considered to threaten ‘traditional ways of life’.
Van der Toorn et al. (2020) eloquently explained the common motivation behind arguments to protect the status quo by reinforcing the gender binary:
“Individuals are motivated to defend existing systems . . . because they help coordinate social relationships and create a sense of shared reality, reducing feelings of uncertainty and threat . . . individuals may defend such systems even if they disadvantage them, because it makes them feel better about the status quo.” (p. 163)
Hence, many individuals, including transgender and non-binary gendered individuals, may argue against GN restrooms in attempts to uphold the gender binary (and, thus, the status quo). For example, Jones and Slater (2020) described how women’s restrooms are understood as a “fundamental location for gendered learning: ‘how to do their hair, hold their bodies, use menstrual products, and adjust their clothes’” (p. 837). However, this function is upheld by both AFAB/AMAB and IFG/IMG restroom configurations, although the specific arguments and assumptions differ between the two configurations. For example, AFAB/AMAB-supportive arguments for upholding the status quo tend to also rely on the arguments described in the previous section to minimize dissent and alternate viewpoints (Davies et al., 2019; Jones & Slater, 2020; van der Toorn et al., 2020), and IFG/IMG-supportive arguments tend to focus on the rights of transgender and non-binary gendered individuals to be allowed to fit into the existing social systems (Spencer, 2019; van der Toorn et al., 2020).
Table 1 Visual overview of argument categories in the Bathroom Debates and the restroom configurations that are supported. ‘Protect Women’ Arguments ‘Protect Transgender and Non-binary People’ Arguments ‘Protect the Gender Binary’ Arguments
Arguments in Support of ‘Assigned Female at Birth / Assigned Male at Birth’ Restroom Configurations
Arguments in Support of ‘Gender Neutral’ and/or ‘Inclusive Female Gender / Inclusive Male Gender’ Restroom Configurations
The following subsections will provide further critical analysis of each of the arguments described in the previous section to determine their relative validity based on the salient concepts of safety, equality, and gender.
Gender essentialism is predicated on the false assumption that the gender binary and the sex binary are both real and biologically linked; whereas, as mentioned in the Primer section, both sex and gender exist on separate spectra (Ainsworth, 2015; Fausto-Sterling, 2000; Kessler, 1990; Morgenroth & Ryan, 2020; Murib, 2020; Roughgarden, 2013). Murib aptly recognized that scholarship and discourse based on gender essentialism are fallacious and therefore do not support any bathroom configuration arguments. Consequently, it follows that the arguments in the Bathroom Debates with heavy reliance on gender essentialism to support claims are mostly or entirely unfounded. Hence, this assertion reduces the validity of all the arguments that support AFAB/AMAB restrooms, which are all rooted in the segregation of people based on a false sex binary. Furthermore, this assertion illuminates the rationale behind the arguments to reinforce the gender binary and protect it from dissent. The rationale is that the gender binary and similar concepts need protection and reinforcement because there is growing evidence against them.
I have used the word ‘protect’ in each of my main argument categories to demonstrate how the notion of trying to protect something or someone believed to be of value is universal amongst the arguments in the Bathroom Debates. The related notion of safety is similarly pervasive in the arguments, although it is used in different ways that sometimes conceal the motives behind the arguments. I have identified three central distortions of the concept of safety that are typically used to support the arguments to protect women.
First, the arguments for protecting women are primarily predicated on the idea that women are safe (or safer) in AFAB/AMAB restrooms, which is not true (Colker, 2017; Hamraie, 2018; Jones & Slater, 2020; Kafer, 2016; Plaskow, 2008). For example, accommodations to support the safe accessibility of users with dis/abilities are not ubiquitous in public restrooms, harmful chemicals used to clean public restrooms can cause long-term physical damage to the people charged with cleaning them, common long queues for women’s restrooms lead to medical conditions associated with frequently holding in urine; and gender-conforming individuals can still face increased gender surveillance, harassment, and violence in AFAB/AMAB restrooms (Barnett et al., 2018; Kafer, 2016; Plaskow, 2008; Spencer, 2019).
Second, the arguments for protecting women build on the notion of a safe AFAB/AMAB restroom by arguing that IFG/IMG and GN restrooms would reduce the safety of women and girls in public restrooms by introducing the supposed threat of cross-dressing cisgender men and trans women violent predators (Barnett et al., 2018; Rowling, 2020; Jones & Slater, 2020). As discussed in the above subsection entitled ‘Protect Women from Harm’, this threat of reduced safety is not based on available peer-reviewed evidence, and some evidence is emerging that demonstrates that more inclusive restrooms may be safer.
Third, the arguments for protecting women focus almost entirely on white, cisgender, able-bodied women and, therefore, neglect to recognize that other populations, such as transgender and non-binary gendered populations, are significantly less safe than white, cisgender, able-bodied women in all restroom configurations (Jones & Slater, 2020; Kafer, 2016; Levi & Redman, 2010; Plaskow, 2008; Spencer, 2019). However, IFG/IMG and GN restrooms seem to be significantly safer for transgender and non-binary gendered individuals than AFAB/AMAB restrooms (Barnett et al., 2018; Hasenbush et al., 2018; Ingrey, 2018; Murib, 2020). Therefore, when considering safety, the arguments in favour of IFG/IMG and GN restrooms are more valid when compared with the arguments in favour of AFAB/AMAB.
According to Gosepath (2007), equality can be both descriptive and prescriptive. As demonstrated in the primer and literature review sections above, when it comes to restroom equality, restrooms can be described as unequal with respect to comfortable and safe access for all members of society. This unequal description is warranted because most restrooms are segregated by gender or ‘sex’, which can introduce discomfort and safety risks for society members that do not identify with the label on the restroom door. Accordingly, gender equality might be prescribed as one potential solution to restroom inequality.
Equal human rights to sanitation and safety in Western countries like Canada may sometimes be legally provided in different ways based on pre-decided intervening factors (e.g., gender), but the rights cannot be removed or ignored based on those intervening factors (Amnesty International, n.d.; Canadian Charter of Rights and Freedoms, 1982; Canadian Human Rights Act, 1985; Levi & Redman, 2010; OECD, n.d.b; U.N., n.d.a, n.d.b). Moreover, these rights cannot be legally provided to one group (e.g., cisgender people) at the expense of another group’s rights (e.g., transgender and non-binary gendered people) even though there are legally allowable exceptions to equal human rights (Barnett et al., 2018; Canadian Human Rights Act, 1985; Levi & Redman, 2010; U.N., n.d.a). Barnett et al. (2018) described some key considerations that counter exception-based equality arguments for AFAB/AMAB restrooms. First, opponents to gender-inclusive restrooms often argue that the alleged harm inflicted on people by sharing restrooms with the ‘opposite’ gender necessitates the removal of transgender and non-binary gendered individuals’ choice of restroom, but proponents of these restrooms argue that such a removal unethically removes the equal rights of transgender and non-binary gendered individuals’ ‘fundamental rights to life, liberty, equality, health, privacy, and expression’ (Barnett et al., 2018, p. 236). Second, opponents to gender-inclusive restrooms argue that trans women and women can be legally segregated “because they are unequal in a very relevant way; biological sex characteristics” (Barnett et al., 2018, p. 236), but proponents counter this argument by positing that “transgender women are not different from biological (sic) women in any relevant way” (Barnett et al., 2018, p. 236). Finally, opponents to gender-inclusive restrooms argue that, ethically, vulnerable persons (women) are legally supposed to be protected, and proponents of gender-inclusive restrooms will counter this argument by explaining that the transgender and non-binary gendered populations are vulnerable in many ways (Barnett et al., 2018, pp. 236-237).
According to Baker et al. (2009), three of the five main dimensions of in/equality are ‘in/equality of power’, ‘in/equality of resources’, and and ‘un/equal respect and recognition’. These three dimensions are the most relevant to the in/equalities faced by transgender and non-binary gendered individuals with respect to public restrooms segregated by gender/assigned sex. Transgender and non-binary gendered individuals tend to be marginalized in most facets of their lives and, therefore, command little social power, which is devastating to their collective ability to assert their equal rights when their opposition (usually white, cisgender women) collectively commands much more social power (Baker et al., 2009; Kafer, 2016; GLSEN, 2015; James et al., 2016). Public restrooms are a very important resource in many modern societies, as they allow citizens to have mobility without worrying about their need for ‘sanitation’ services, and so the forced segregation and associated risk of harassment in restrooms for transgender and non-binary gendered individuals do, indeed, represent an in/equality of resources (Baker et al., 2009; Jones & Slater, 2020; Spencer, 2019). The third dimension, un/equal respect and recognition, is inherent in the forced identification and surveillance involved in segregated restrooms, in addition to the frequent misgendering and misrepresentation of transgender and non-binary gendered individuals as predators (Baker et al., 2009; Davies et al., 2019; Levi & Redman, 2010; Spencer, 2019). In summation, transgender and non-binary gendered individuals face a multitude of in/equalities with respect to restrooms, and the arguments favouring AFAB/AMAB restrooms contribute to this issue.
“It is a basic fact of biology that every person requires access to the bathroom.”
(Levi & Redman, 2010, p. 133)
As demonstrated by J. K. Rowling’s infamous Twitter comment and the subsequent back-and-forth with the public, the arguments in the Bathroom Debates are often highly emotionally charged and based on assumptions and understandings that may be erroneous, entirely unfounded, or politically motivated. The arguments in favour of restrooms segregated by assigned sex (AFAB/AMAB) largely claimed to seek the safety of women (and sometimes transgender and non-binary gendered individuals) and to protect heteronormative traditions. Similar arguments were sometimes used in favour of restrooms that maintained gendered labelling but were inclusive of all genders in practice. Alternatively, arguments in favour of GN (and sometimes IFG/IMG) restrooms largely claimed to seek the safety, security, comfort, and inclusion of transgender and non-binary gendered individuals that currently face significantly higher risks, levels of discomfort, and exclusion than cisgender individuals.
When operating from the standpoint that all humans have an equal right to access public sanitation facilities and that heteronormativity and gender essentialism are unfounded, it becomes clear that restrooms segregated by assigned ‘sex’ violate the rights of transgender and non-binary gendered individuals. Moreover, the right to safety fortifies the arguments against AFAB/AMAB restrooms because these restrooms are inherently unsafe for many transgender and non-binary gendered individuals. This is ironic because the safety of (cis) women is the crux of many arguments in favour of AFAB/AMAB restrooms, based on the unfounded assumption that IFG/IMG and GN restrooms will result in more crimes against (cis) women. Therefore, the relative validity of arguments supporting IFG/IMG and GN restrooms is far more substantial than the relative validity of arguments supporting AFAB/AMAB restrooms.
When I embarked on this research, I aimed to answer one simple question: Are some arguments in the Bathroom Debates more valid than other arguments? It is my hope that this research may now help to provide context and perspective to any individuals that may have stakes or influence in the Bathroom Debates. For those that are interested in conducting further research, some ideas might include (1) investigating the advantages and disadvantages of a wide variety of restroom configurations with particular attention to intersections of dis/ability, race, and gender; or (2) an investigation of how arguments made in the Bathroom Debates and other related debates (e.g., the recent debate about the involvement of transgender girls in school sports teams) might play a role in the mental health and daily lives of impacted communities.