By Elayne Wells Harmer
What will the public restroom of the future look like?
Perhaps all stalls will be fully enclosed and self-cleaning, as some are in England and France.[1] Maybe they will run on solar power and be made of vandalism-resistant material, as are the loos in Portland.[2] In a perfect future world, toilet paper rolls will always be in the correct position (with the end of the roll hanging over the exterior),[3] and the default position of the toilet seat will be down, as many progressive Germans insist.[4]
And maybe, in ten or fifteen years, public restrooms in the United States will be gender-neutral.
Some legal experts, architects, and social-equality activists are working to ensure that non-binary restrooms will at least be an option in the future, but they acknowledge it will not happen tomorrow.
“A realistic goal for the foreseeable future is to change laws to allow for more inclusive restrooms around the country,” says Professor Terry Kogan, who teaches in the areas of sexuality, copyright law, legal philosophy, trust and estates, art law, and contracts at the College of Law. “That’s a good goal: inclusive restrooms. There are individuals for whom there are currently few safe and accessible public restrooms.” 
Kogan has spent the last decade advocating for the rights of transgender people and working to change both cultural norms and building codes that currently mandate sex-separated public restrooms. The recipient of the inaugural Pioneer Award from LGBT and Allied Lawyers of Utah, Kogan is considered one of the luminaries of the LGBTQ community in Utah.
“There is no doubt we are stronger today because of his tireless dedication,” says Troy Williams, executive director of Equality Utah, a nonprofit advocacy group that works to secure equal rights and protections for the LGBTQ community. “Terry contributed to a legacy that a whole new generation has now inherited.”
Kathryn Stockton, associate vice president for the Office for Equity and Diversity and dean of the School for Cultural and Social Transformation at the University of Utah, credits Kogan with more than just leadership: “For all of us who have been LGBTQ on campus, we’ve needed each other—and Terry has always been a very tender friend amid our passionate efforts here.” Describing Kogan’s work to retrofit bathrooms at the U, Stockton adds, “To have one of the most important people working on inclusive restroom issues in the country, and even outside the country, as a law professor here? That’s very exciting for us.”
Given the cutting-edge research and scholarship that Kogan has produced in this field, it’s no surprise he is considered an international expert. In May 2015, Yale School of Architecture Professor Joel Sanders and University of Arizona Professor Susan Stryker, a transgender historian, invited Kogan to join them in a new project named Stalled!. Combining their architectural, theoretical, and legal expertise, Stalled! aims to pave the way for inclusive and economical restrooms in America: all-gender, multi-user public restrooms that protect the privacy and safety concerns of all patrons, while discriminating against none.
The project was a reaction to the hotly contested national debate over guaranteeing transgender individuals access to the public toilet that aligned with their gender identities. Given long-standing cultural attitudes, many Americans were in an uproar over such proposals. In March 2016, the North Carolina legislature passed the now-notorious H.B. 3—the so-called “bathroom bill”—that required people to use public toilets that corresponded with their birth sex. That law was a direct response to the Obama administration’s interpretation of Title IX protections as requiring recognition for transgender students’ gender identities in public-school programs.
The bathroom wars escalated: Social conservatives voiced concerns about “women’s safety” and accused the Obama administration of a “burning desire to push the boundaries of culture change,”[5] while activists for social justice reproached their opponents for being transphobic.[6] In March 2018, the Trump administration rescinded the Obama Title IX protections. In response, the U.S. Supreme Court refused to hear a case pending before it, Gloucester County School Board v. Gavin Grimm, which involved a transgender teenage boy who was prohibited from using the boys’ communal restroom at his high school. Kogan had previously submitted an amicus curiae brief in that case.
A modest proposal
The founding members of Stalled! believe they have a way to bridge this cultural divide. Under Sanders’ direction, Stalled!’s architectural team designed a series of prototypes for inclusive restrooms of the future, which earned the award for “Best of Design” by The Architect’s Newspaper in 2018.[7] Among Stalled!’s most talked-about designs is a prototype they created for an airport restroom. The creative and visionary blueprint removes walls and doors in order to make this restroom an integrated part of the environment. The public restroom is conceived as a semi-open agora animated by three parallel activity zones: one each for grooming, washing, and eliminating. For those seeking more privacy for grooming, curtained spaces will be available in that zone. Stalls in the elimination zone will have floor-to-ceiling enclosures.[8]
“Stalled! is committed to protecting everyone’s interest in safety or privacy,” Kogan says firmly. “But that goal can be accomplished in an all-gender restroom. That’s the point.”
Some wonder why a single-user, gender-neutral restroom, the kind traditionally set aside for persons with disabilities and families, shouldn’t be considered acceptable for transgender people. The answer is simple: Forcing transgender people to use only single-user restrooms stigmatizes them and other gender-nonconforming people (as well as those with disabilities) by separating them from the community, sending a message that they are unfit to use the same public restrooms as others. It takes away their dignity.
Beatrice Lark Washburn, a 24-year-old transgender woman, says that relegating transgender or gender non-binary individuals to a bathroom dedicated solely for their use brands them as second-class citizens.
“They imply, ‘Keep the bathroom for only the right people, and we’ll be safe. Those people bring disease!’” she says. “Early on in my transition, I was asked, ‘Are you sure you’re in the right bathroom?’ I didn’t look as feminine as I do now—I was in that awkward middle ground—and others were trying to decide what gender I was. I shouldn’t have to show my ID to go to the bathroom.”
Washburn got in trouble in preschool when she tried using the girls’ restroom, because she found the boys’ toilets “disgusting.”
“What we need is broader hygienic education,” she explains. “It’s important to teach people proper social etiquette.”
Europeans understand the problem of bathroom hygiene, one of the concerns many women have about sharing a bathroom with a man. A growing number of Germans believe that men should never urinate standing up, if they are using a toilet (as opposed to a urinal). A Norwegian public toilet will sometimes have three signs on the door: figures that are male, female, and both at once (a somewhat awkward image of a person wearing half a skirt). In Oslo, an American writer saw one bathroom with pictures of a centaur and a mermaid under the caption, “Whoever you are, remember to wash your hands.”[9]
Code Amendments
Kogan’s role in the Stalled! project has been to help bring about amendments to the International Plumbing Code (IPC), the model code that governs most construction in the United States, to allow for inclusive restrooms. That Code is promulgated by the International Code Council (“ICC”), a 64,000-member organization composed of municipal code and fire officials, architects, engineers, builders, contractors, elected officials, manufacturers, and others in the construction industry. Until recently, the IPC required “separate facilities” for men and women in public buildings. If a building owner wanted to construct an inclusive restroom, they had to request a modification from a local code official, which was not automatically granted.
For Kogan, these codes are not just technical construction requirements; they reflect a long history of assumptions that effectively codify discrimination against non-binary gender categories.
“Building codes, whether informal or formal, inevitably embody social, political, and moral values of the society in which they arise,” wrote Kogan in an essay.[10] The goal is that someday there will be building owners “who will experiment with what is now allowed, which is to create an all-gender, multi-user restroom that’s built within the code provision, as a third option to a men’s and a women’s restroom,” he explains. “So a progressive building owner could decide, ‘Why don’t I put a few of these in?’ And then people have a choice.”
At the International Code Council’s annual meeting in October 2018, Kogan lobbied the group to amend the IPC to allow for (but not require) all-gender, multi-user restrooms in public buildings. As a result, the ICC amended the “Separate Facilities” provision in the IPC, and inclusive restrooms are now a design option for building owners. That amendment will be incorporated into the 2021 edition of the IPC.
A conflict-ridden history
Of course, this is not the first time public restrooms have divided Americans.
“At different moments in U.S. history, the public bathroom has registered social anxieties triggered by the threat of previously marginalized groups moving into mainstream society,” notes transgender historian Susan Stryker.[11] She sees parallels between the effort to allow transgender access and the fight to abolish “colored” bathrooms during the 1950s and ’60s, the controversy over sharing restrooms with gay men during the AIDS crisis in the 1980s, and the movement to demand accessible restrooms for disabled people that led to the ADA in 1990. “The transgender bathroom debate is just the latest episode in this long history,” Stryker notes.
Beatrice Washburn sums it up: “Separate is not equal. Black people were made to feel like they were lesser citizens because they were not allowed in white bathrooms. Transgender people feel the same way.”
Demonstration of acceptance
Still, even those who wouldn’t think of denying a black person access to a public bathroom today might balk at allowing a transgender person to share their space.
“We often hear of women who are uncomfortable in a public bathroom when they hear a man’s voice,” said Gayle Ruzicka, president of the Utah Eagle Forum. “I would be one of those women.”
Discomfort is certainly a common reaction from many people, even those who consider themselves progressive and welcoming. “There are ways of dealing with discomfort, but I can’t promise it will change immediately,” says Kogan candidly. “But the significant advantages inclusive restrooms offer to minority populations far outweigh the difficulties.”
Kogan suggests that those who advocate for change need to be patient. “Over time, awareness and experience change attitudes. Look at the gay movement,” he points out. “There is definitely a learning curve.”
Twenty years ago, for example, some people were uncomfortable having a gay couple living next door; today, “gay neighbors” are simply neighbors.
“Public attitudes will become more generous and accepting towards gender non-conforming people, I’m certain,” he says. “America is becoming aware that transpeople are a regular part of our daily experiences.”
Kogan believes the changes will be adopted gradually. “I can see myself in the not-too-distant future, testifying before state legislatures as to why they should adopt this new provision of the International Building Code,” he says.
Optimists believe that hearts and minds can open. In a perfect future world, perhaps people of diverse identities will comfortably interact with each other in a public space. Hopefully, that won’t take as long as changing the default position of a toilet seat.
About the author: Elayne Wells Harmer is a 1993 graduate from the College of Law and has a bachelor’s degree in English from Stanford University. After practicing at Fabian & Clendenin, she served as legislative counsel to Sen. Slade Gorton (R-WA) in the U.S. Senate. She now works as a writer and editor.
For further reading:
“Understanding Transgender Access Laws,” The New York Times, February 24, 2017, https://www.nytimes.com/2017/02/24/us/transgender-bathroom-law.html
Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (Abingdon, United Kingdom: Routledge, June 3, 1905).
“Video: Why Gender-Neutral Bathrooms Matter,” Metropolis, https://www.metropolismag.com/architecture/gender-neutral-bathroom-design-video/.
Terry S. Kogan, Sex-Separation in Public Restrooms: Law, Architecture, and Gender, 14 MICH. J. GENDER & L. 1, 27 (2007).
Terry Kogan, Public Restrooms and the Distorting of Transgender Identity, 95 N.C. L. REV. 1205 (2017)
[1] Durant Imboden, “Sanisette Public Toilets,” Paris for Visitors, https://europeforvisitors.com/paris/articles/paris-public-toilets.htm.
[2] John Metcalfe, “Why Portland’s Public Toilets Succeeded Where Others Failed,” CityLab, January 23, 2012, https://www.citylab.com/design/2012/01/why-portlands-public-toilets-succeeded-where-others-failed/1020/.
[3] Megan Willett, “124-year-old Patent Solves the ‘Over Versus Under’ Toilet Paper Roll Debate,” Business Insider, March 19, 2015, https://www.businessinsider.com/patent-shows-right-way-to-hang-toilet-paper-2015-3.
[4] “Sitzpinkeln: Germany’s dark secret,” Berlinerisch, March 7, 2016, http://berlinerisch.com/blog/2016/03/07/sitzpinkeln-germanys-dark-secret/.
[5] Rich Lowry, “The Bathroom Putsch,” National Review, May 17, 2016, https://www.nationalreview.com/2016/05/obama-administration-transgender-bathrooms-dear-colleague-letter/
[6] “Transgender Law Makes North Carolina Pioneer in Bigotry,” The New York Times, March 25, 2016, https://www.nytimes.com/2016/03/25/opinion/transgender-law-makes-north-carolina-pioneer-in-bigotry.html
[7] “Announcing the Winners of the 2018 AN Best of Design Awards,” The Architect’s Newspaper, Dec. 5, 2018, https://archpaper.com/2018/12/announcing-the-winners-2018-an-best-of-design-awards/#gallery-0-slide-9
[8] “Prototype: Airport,” Stalled!, https://www.stalled.online/design.
[9] Leonid Bershidsky, “The Nordics Get Toilet Equality (Almost) Right,” Bloomberg, January 8, 2019, https://www.bloomberg.com/opinion/articles/2019-01-09/scandinavia-s-switch-to-ungendered-public-toilets-is-step-forward.
[10] Terry Kogan, “Sex-Separated Public Restrooms and Their Regulation Throughout American History,” Stalled!, https://www.stalled.online/standards.
[11] “Stalled! The Video,” ttps://www.stalled.online/#video.