Do we really need laws on toilet access?

Who can enter whose washrooms in US public universities should be a matter for kindness and common sense, not ideology, says Felipe Fernández-Armesto

November 17, 2016
Illustration of man sitting on toilet, by David Humphries
Source: David Humphries

“They have their exits and their entrances, marked ‘Ladies’ and ‘Gents’.” But not, perhaps, for much longer. I am struggling to imagine the interiors of ladies’ lavatories, as, like most people of my sex, I have never seen these privileged environments. My fellow academic males in the US, it seems, share my failure of imagination. In consequence, under-information bedevils a bizarre ruckus about who should have access to whose lavatories in public educational facilities.

The casus belli is a recent law in North Carolina, explicitly confining each sex to its allotted space. People who have switched from one sex to another can re-register, but the new dispensation makes no provision for those whose peregrination is incomplete. Among organisations that have decided to shun the state, the National College Athletics Association – the body that regulates university sport – has cancelled national championship events in North Carolina. My university, which has all the lavatories it needs, has become embroiled in the controversy because our president, Fr John Jenkins, suggested in The Wall Street Journal that it would be improper for the NCAA “to attempt to influence…the legal process or change legislation” or arrogate “the role of spokesperson” for athletes or universities. The association would surely deny any such intention, claiming only to seek (in the words of the official statement justifying withdrawal from North Carolina) “an inclusive atmosphere for all college athletes, coaches, administrators and fans”.

Fr Jenkins’ admonitions, similarly, are strictly unobjectionable. Yet some of my most valued colleagues have denounced him, in a collective letter to the university’s student-run daily newspaper, for “a public statement that privileges the rights and feelings of cisgender [sic]…people”. For “privileges”, one might read “respects” and, for “cisgender people”, “women”.

The quarrel is pointless. In practice, only women’s spaces are at issue. I cannot imagine regular users of men’s loos fearing invasion by predatory sufferers from penis-envy. And men – so registered – who want to be women vastly outnumber the registered women who want to be men. The real problem of lavatory allocation arises from a genuine conflict of legitimate interests: those of women at ease with their femininity who want modestly to keep interlopers at bay; and those of individuals uncomfortably stranded between uncongenial amenities and contrasting sexual identities. The North Carolina law is deficient, but there is no perfect solution. Even with public reconciliation – unachievable in the short term – to unisex lavatories and changing rooms, vast investment and redesign, probably disproportionate to the numbers of beneficiaries, is needed to create spaces ideal for all to share. Even then, unisex facilities will have to include secure accommodation for women of vulnerable sensibilities, with the almost inevitable danger that those excluded from them will complain of supposedly infringed rights.

I have a suggestion – radical in effect, albeit conservative in appearance. Leave things as they are, without officious laws such as North Carolina’s, portentous interventions such as those of the NCAA, or rhetorical misrepresentations such as those of my respected colleagues.

My wife once extolled to me the flower arrangements in a Ladies in Bogotá, and the service of the attendants in the corresponding facility at the Hôtel de Crillon in Paris: I felt mildly jealous, but did not demand access. Although I therefore rely on hearsay for my information, I believe women’s facilities typically have cubicles for properly private functions or screened booths for changing. No one who affects female appearance is challenged, except for importunities or peepings that should in any case be punishable under traditional laws equally applicable to offenders formally classified in either sex.

A genuinely transgender person who merely feels – say – feminine but does not affect the looks, dress or appearance of a woman does not need to be specially served, any more than anyone else who feels uncomfortable in his or her own skin or whose self-perception is not shared by beholders.

I am a transgenius – a natural-born fool who feels, to himself, like a mastermind; I must, however, accept that my wife, children and fellow academics may continue to classify me in my birth category. My Mexican immigrant friend José is a transamerican, but defers to US authorities who will not admit him as such until he completes the naturalisation process. My dog is a transhuman, resigned to exclusion from certain shops and restaurants on the grounds of discrimination, which, I suspect, he secretly regards as prejudiced and unprincipled. The point is not that other people’s verdict on one’s identity should necessarily be accepted – just that one should act consistently with the image one projects. If my dog shaved his face, put on clothes and walked on his hind legs, he should be permitted to use the Gents instead of a tree stump.

There are tragic renegades and inspired traitors. I have known of white Rastas, blanchissant blacks and even Jewish Nazis, warped by revulsion from the kin and culture of their birth. Usually, however, self-dissatisfaction is a sign of virtue – a laudable rejection of complacency. For those engaged in it, sexual self-transformation can be, I suppose, as much a search for improvement as self-education. I would not encourage it, because I have seen more cases in which the urge for it has been happily resisted than happily indulged; but there is going to be a lot more of it in the future, because sex, procreation and child-rearing can now all be pursued independently, for those who so wish. By approaching the consequences with kindness and common sense, rather than fury and ideology, we can accommodate those affected with surprisingly little trouble and cost.

Felipe Fernández-Armesto is William P. Reynolds professor of history, University of Notre Dame in the US.

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