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Public Culture 13.2 (2001) 333-336



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Changing Room?
A Quick Tour of Men's and Women's Rooms in U.S. Law over the Last Decade, from the U.S. Constitution to Local Ordinances

Mary Anne Case


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Constitutional Equal Protection In litigation concerning the admission of women to the Virginia Military Institute (VMI), the school made much of the educational benefits afforded by "total lack of privacy," with male cadets under constant observation even while in "gang bathrooms." 1 Admitting women, the school successfully convinced a federal district court judge, would have one of two unacceptable consequences: either the women, too, would "lack . . . privacy," thereby "destroy[ing] any sense of decency that still pervades the relationship between the sexes" 2 or "adaptations would have to be made, in order to provide for individual privacy," thereby destroying equality, transparency, and the VMI honor code, which depended, according to Judge Jackson Kiser, on "the principle that everyone is constantly subject to scrutiny by everyone else." 3 Although she noted that the educational system in Plato's Republic featured both sexes exercising together in the nude, 4 Justice Ruth Bader Ginsburg wrote for a Supreme Court majority that "admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex." 5 VMI officials went Ginsburg one better: they gave some privacy, even from their own sex, to the women the Supreme Court required VMI to admit. In fact, even before the [End Page 333] [Begin Page 335] advent of women, the school's lack of privacy was less than total. The men's toilets at VMI did not feature just one large trough but separate stalls with waist-high wooden partitions--stalls which lacked doors mainly because the school got tired of replacing those that had been broken off their hinges by rowdy cadets. But the women not only got toilet stalls with doors that closed; they also got individual curtained shower stalls rather than open, communal showers like those used by the men. When I asked why this difference, a male cadet muttered something to me about "health reasons," while his commanding officer amplified with reference to "blood-borne diseases."

Title VII Employment Discrimination Although he had previously argued that it might constitute cruel and unusual punishment to allow female guards to observe a male prison inmate using the toilet, and although another federal court had previously acknowledged that the absence of adequate toilet facilities can have an impermissible disparate impact on female employees, Judge Richard Posner of the Seventh Circuit Court of Appeals recently ruled that it did not constitute actionable sexual harassment for an electric company to fail to provide restroom facilities for its only female lineman--a situation that forced her to urinate out in the open (as the men did in her presence) or to be subjected to the jeers of her co-workers for detouring to the nearest public toilet. Recounting her own experiences and those of women in Congress put to the choice of missing a vote or seeking out a distant restroom, Seventh Circuit Court Judge Ilana Rovner dissented, saying that "because prejudice and ignorance have a way of defying formulaic constructs," plaintiff Audrey Jo DeClue should have been allowed to proceed with her hostile-environment claim. 6

State Law In 1990, at a George Strait concert in Houston, Denise Wells was arrested and fined $200 for entering and using an otherwise empty men's room after finding thirty women ahead of her in line for the women's room. Not only did a jury ultimately acquit Wells, the Texas legislature responded to her plight with legislation mandating twice as many women's as men's toilets in new or renovated public spaces. The Texas law became a model for "potty parity" ordinances across the country. 7

In 1998, Bob Glaser sued the city of San Diego for over $5 million...

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