Last week a law was signed by North Carolina’s governor to prohibit local governments from enacting laws and ordinances to permit transgender people to use gender affirming public bathrooms. Bathroom access for many, including non-gender conforming and transgender people, continues to be a hotly contested issue. Yet most of the contemporary media coverage fails to address the complex history of access to public toilets, and also some of the core anxieties that continue to fuel these bans.
From Houston’s defeated “Equal Rights Ordinance,” to K-16 campuses across the nation, our private business, or who can urinate, defecate, change menstrual pads and tampons, wash, and attend to other needs, where, is again a public matter.
State-sponsored bathroom anxiety is an old story. In the 1930s, African Americans used the Negro Motorist Green Book to locate welcoming accommodations in a segregated country, yet knowing they would be denied the use of public restrooms, often carried containers or portable toilets in their car trunks. In the 1960s mimeographed Midwest Mattachine newsletters, a gay organization, routinely included snapshots of the public restrooms men looking for sex with other men should avoid as these toilets were sites of police entrapment. And by many accounts, the Equal Rights Amendment, passed by Congress in 1972 and defeated by the Senate in 1982, was doomed by a fear of “unisex” bathrooms.
While the first state law mandating that toilet facilities be separated by gender was passed in 1887, separation hasn’t led to bathroom safety for anyone. In 2003 a professional football player for the DC Divas, who identifies as a woman and a lesbian, was arrested for using a women’s restroom. As attorney Dana Turner noted in the 2003 political intervention by Tara Mateik and the Sylvia Rivera Law Project, Toilet Training: Law and Order in the Bathroom, “Even being in perfect compliance with the signs on the door, you may have trouble in the bathroom according to how you are perceived by the other people in that bathroom.”
Today, as contemporary challenges to old gender systems continue, bathroom anxieties also flare. In 2015, with appeals to shield the youth, jurisdictions are busily concocting gender policing ordinances and laws to enforce gender segregated bathrooms. In districts like Palatine, Illinois, school officials resisted the federal government’s directive to require schools to permit a transgender student unrestricted access to the bathroom corresponding to their gender; in a still-contested last-minute settlement the student agreed to shower and change clothes in a “private” area of the locker room.
In Florida, proposed law would have punished anyone who used a bathroom that did not correspond to their assigned sex; a Nevada school banned a trans boy from using the boys’ restroom; and a small town in Missouri is reported to have been “divided” by debates over a trans girl’s access to the girls’ locker-and-bathrooms. To cap off the year, in November presidential candidate Ben Carson suggested that trans people be offered separate facilities because, “It’s not fair for them to make everyone else uncomfortable.”
As the nation continues to fight over queers’ access to bathrooms, and particularly access for transgender and non-gender conforming people, LGBTQ lives are again being drawn into an age-old battle about what makes our children safe, or at least safer. The threat of sexual violence, laced with trans- and homo- phobia and paired with calls to “protect our children,” is deftly circulated to legitimize gender-segregated bathrooms. Of course, some people do harm children, but research consistently illustrates that those known to children, not strangers, are most likely to cause harm to children. Far from random public places, the home is overwhelmingly the site of sexual and other violence for many, and particularly children. And public bathrooms? “A child’s risk of being killed by a sexually predatory stranger is comparable to his or her chance of getting struck by lightning ( 1 in 1,000,000 versus 1 in 1,200,000 )” writes Roger Lancaster ( 2011 ), author of Sex Panic and the Punitive State.
Destroying public space to protect children, however, is a more familiar story: Throughout the sex panics of the 1980s and ’90s newspapers published articles warning parents about the dangers of public spaces, including restrooms, for their children. More recently, articles and books encourage parents to prepare children if they must use public facilities, suggesting instructions like, “Scream as loud as you can if you can’t get out,” as a Nebraska writer offered in 2000. As amplified by the signs and T-shirts too visible in the 2015 defeat of Houston’s Equal Rights Ordinance, exhorting “No Men in Women’s Bathrooms,” the panic that men will pose as women to infiltrate women’s bathrooms and rape women and girls continues to influence policy and shape access to these necessary public spaces.
If lawmakers are worried about the connection between public spaces and harm to children, we should move beyond the myths of bathrooms as sites of violence for children and focus on the real and current ways our eroded public sphere stunts lives, arrests development, and corrupts childhood: What damage is done by the empty stacks in our public libraries, the librarians missing from our public schools, the evisceration of support for public housing, and the privatization of public parks? What violence happens when 15-year-olds are tried as adults? When young people are denied meaningful and comprehensive sexual health education that includes pleasure, contraception, and LGBTQ lives? And to really address what makes children’s lives precarious, and invites danger, we can start by focusing on the nation’s overwhelming need for paid parental leave and subsidized childcare programs, services deemed essential public goods in many parts of the world, although not the United States.
To be sure, safe access to public restrooms is a queer struggle: The consistent targets of bathroom trouble are gender fluid, gender creative, gender resistant, gender queer, and transgender people, along with all poor people, who are often unhoused and thus unrestroomed. But countering our nation’s bathroom anxieties, requires dismantling the “child protection” myths often at their center. What harms children? Poverty, and the ongoing and relentless destruction of our most critical public resources. Bathrooms? Of course we give a shit, but in the movement to make them queer positive, let’s challenge the resistant fiction that we can protect children without preserving the public.
Therese Quinn writes about the arts and cultural institutions as sites of justice-work and is Director of Museum and Exhibition Studies at the University of Illinois at Chicago. Erica R. Meiners is a fan of Octavia Butler and teaches at Northeastern Illinois University.