Jay Stooksberry: The One Reason We Can’t Solve the Gendered-Bathroom Issue

Jay Stooksbury

Bloke or Sheila? Caballero or Señora? Sailor or Mermaid? Stallion or Filly?

We’ve all been there before—excusing ourselves from our meal while we dine out at our favorite local restaurant, only to find ourselves at a curious crossroads of picking the appropriate (yet obnoxiously-named) gender-specific bathroom.

This has become a hot topic of late—the gender-specific bathrooms that is, not the obnoxious names. Conversations regarding gender-neutral bathrooms have surfaced as an issue related to public accommodations laws and equal protection for transgendered individuals. Debates continue to rage, primarily between the social justice left and the religious right, over blokes who self-identify as sheilas using restroom facilities designed for sheilas.

These restrictions placed on business and construction are the biggest hurdle to addressing this issue of gender-neutral bathrooms in public spaces.

This piece isn’t about whether it is right or wrong for transgendered people to use the bathroom of their choice. Enough has been said about that.

Instead, this is about getting to the root of the problem, which is not often discussed. What’s usually missing from this debate is the one driving force that obfuscates the entire process: building codes.

International Building Code

Yes, you can blame the International Building Codes (IBC) for those obnoxiously-named bathrooms that segregate genders. (Actually, just the restaurant owners bear the brunt of the blame for goofy names.)

Building code standards are adopted at the state and local level to enforce uniformity in construction-related benchmarks—everything from how high the handrail for your stairway needs to be to how many fire-suppression sprinkler heads you must disperse throughout your building. Within the scope of the IBC is the requirement that certain businesses and facilities must build separate, gender-specific bathrooms.

These restrictions placed upon business owners and construction contractors are the biggest hurdle to addressing this issue of gender-neutral bathrooms in public spaces. Even if a progressive-minded business owner wanted to install unisex, single-occupancy bathrooms in her restaurant, she would be in violation of universally adopted building codes and would likely be forced to close until the code violation was remedied.

The “Potty Parity”

Urinary segregation laws date back in the United States to the 19th century, and, much like most bad ideas that originated during that era, it was the result of pseudoscientific claims that masked social agendas as biology. This particular brand of ideologically-drenched science was called the “separate spheres” movement. This movement, which predicated itself on the “biological determinism” of the genders, suggested that men and women were inherently different—thus, each gender must be treated differently in public spaces to maintain their unique virtue.

Pittsburgh established a mandate that there must be at least 3.75 female toilets to every individual male urinal in all public spaces.

This prudish thought was a response to the growing presence of women in an increasingly industrialized and centralized workforce. Misguided concerns over how female menstruation might impact male lavatories inspired efforts to offer separate facilities in the factories. Terry S. Kogan, legal scholar and author of the book Toilet: Public Restrooms and the Politics of Sharing, found that segregating genders was a “kind of cure-all” for the Victorian-age anxiety over women “ignoring their duties”—namely, housekeeping and childbearing.

Biological determinism was codified into law in 1887 when Massachusetts passed what is considered to be the first public mandate regarding separate bathrooms. The “separate but equal” binary quickly became the statutory solution across the nation. By the 1920s, nearly all of the U.S. states had adopted similar legal requirements.

“Potty parity” laws became the implicit norm for building codes, establishing awkward ratios that attempted to compensate for the differences in men and women’s bathrooms. Such differences include the “fact” that men’s urinals take up less physical space than women’s toilets, which may result in the construction of more urinals, creating a disparity in gender equality. For example, Pittsburgh established a 3.75:1 ratio, mandating that there must be at least 3.75 female toilets to every individual male urinal in all public spaces. (How one exactly installs three-fourths of a toilet is beyond my engineering abilities.)

Washing Our Hands of His and Hers Bathrooms

With almost a century’s worth of construction and development—all of which was mandated to build and maintain gender parity in restroom facilities—the unisex bathroom movement has a steep hill to climb.

Mandating compulsory unisex bathrooms in all public spaces is out of the question.

Proposals to update these outdated codes have finally been adopted after immense political pressure. The 2018 edition of IBC includes provisions for gender-neutral bathrooms. “The use of single-user toilets has become increasingly beneficial system of providing not only better facilities, but more user friendly facilities,” the proposed policy change recommends. “A higher level of privacy is achieved, the facilities are typically better maintained by the users, and the efficiencies of having unisex facilities where the users are of a dominate sex are significantly increased.”

However, as is the case for most centrally-planned efforts to fix the historical errors of central planning, it is too little, too late. In some states, local governments are required to adopt a specific edition of acceptable editions of the IBC. For example, in Colorado, municipal governments, under home rule law, are able to adopt their own edition of code—as long as the edition is on the state’s approved list of editions. Many economically-strapped communities will stick to the oldest version available because they typically offer the least restrictive and cost-prohibitive standards. The incentive to “upgrade” to newer editions is nonexistent.

Mandating compulsory unisex bathrooms in all public spaces is out of the question due to the vast scale and costly level of effort to retrofit every single bathroom everywhere. This is why efforts to reform the vast architecturally-entrenched binary choose to focus energy on “gender identity,” for example, the city ordinance passed City Council of Charlotte, NC (which set the controversial HB2 law into motion) and California’s School and Success and Opportunity Act. With such sizable statutory hurdles in place, the gender identity card is their only play available.

So until building code mandates become more liberalized, freeing up businesses to build facilities in a way that best meets the needs of their clientele and liberating municipal governments from the burdensome legalese trickling down from the state and federal levels, you can expect more public disputes, like the transgendered bathroom issue, to arise


Jay Stooksberry is a freelance writer, marketing consultant, beer aficionado, balding punk rocker, doting father, business owner, libertarian activist, work-from-home-father, wedding officiant, animal lover, and all-around okee doke guy.  He currently serves as the chairman of the Libertarian Party of Delta (CO).  His work has been published in Newsweek, Foundation for Economic Education, Independent Voter Network, Fatherly, and a host of other publications.

When he’s not writing, he splits his time between marketing consultation, outreach work for his local Libertarian Party affiliate, community volunteering, and enjoying his spare time with his wife and son.  Follow him on Facebook or Twitter.

This article was originally published on FEE.org.

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5 thoughts on “Jay Stooksberry: The One Reason We Can’t Solve the Gendered-Bathroom Issue

  1. Tony From Long Island

    Using building codes to argue that there should be unisex bathrooms? Government is the problem . . .blahzy blahzy . . . Come on . . . . .

    The answer is much simpler . . . let trans-gender people pee where they want to pee.

  2. Melinda Pillsbury-Foster

    Any solution to the issue of rest facilities should be handled by the market forces brought into play as part of a free market. This is the only consistent approach for those who are pro-freedom.

    Families with handicapped members will by pass restaurants and other enterprises which ignore the need for access. Most people do not want to share facilities with transgendered individuals, especially when this could, even remotely, expose their children to issues they find distasteful. They will bypass those enterprises which provide freedoms which make their own choices unavailable, as is their right.

    Right or wrong, people have a right to prefer and so choose one enterprise over another on any criteria.

    Tat said,, the use of single-user facilities with toilet, and sink work well and are being adopted in many states and local areas. Some enterprises also include a ‘family facility’ which allows the user more space for children and a changing area.

    It goes without saying the correct approach on this issue is opposition of any law or regulations whatsoever.

    I suggest that instead of accepting the statist status quo individuals who are pro-freedom point out that laws cost all of us and the issues are better handled by free choice on the part of both owners and those who patronize their establishments.

  3. dL

    Most people do not want to share facilities with transgendered individuals, especially when this could, even remotely, expose their children to issues they find distasteful.

    I imagine most people who really have to take a piss don’t care. Cleanliness of the facility probably is the highest prioritized preference.

    RE: the stipulation that the free market would resolve the issue. Probably. But probably not in the way you think. A free market is not going to build separate restrooms for each ethnicity/race. Nor is it likely to build separate restrooms for each gender. Gender, like race, is not a simple binary thing. Race is not merely black v white and gender, male v female.

  4. Marc Montoni

    Bathroom policies should be at the behest of one individual (or entity): the owner of the property.

    If someone ignores the owner’s preference, and the owner notices, the owner has every right to throw that person out. The vast majority don’t give a flying crap (no pun intended). That’s as it should be, and even without whiny plaintiffs and greedy lawyers using the courts system, that’s also the way it would continue to be.

    It’s called “Freedom of Association”, and either everyone has that freedom, or no one has much freedom at all.

  5. Carol Moore

    Marc makes a good statement on this. Most women do not want individuals who obviously are male – not matter their claims or mode of dress – in bathrooms, locker rooms, shower rooms, etc with them.
    And therefore they will avoid restaurants which openly state any male claiming to be a woman can use a multi-stall room, locker room, shower, etc.

    Considering that most women have been exposed to sexual harassment, groping and even rape in quite public places with many onlookers, how much more worrisome is it in an enclosed area. And just having them peeking at your, playing with themselves, or whatever is bad enough!

    A Swedish study showed that male to female transgenders had the SAME rate of criminality as other males and therefore women have just as much to fear from them as from just any guy walking in to these spaces.

    Meanwhile every larger facility is just smart to have a single room bathroom that can be used by any parent with child or handicapped person or transgender who the facility does not want using their multi stall rooms.

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