March 8, 2005

The single-sex bathroom issue again.

Yale lawprof Ian Ayres is feeling put out by single-sex bathrooms at his institution. He should also feel put out by Slate's headline writers, who wrote this teaser for their front page: "What the Constitution Says About Toilets." There isn't a word about the Constitution in Ayres's article, and not just because the claim that single-sex bathrooms are illegal sex discrimination is far-fetched. The Constitution has nothing to say about sex discrimination in private institutions (like Yale).

I wrote about single-sex bathrooms last week, and I am eager to preserve them. Like Ayres, however, I do think there isn't so much point to limiting single-user bathrooms to one sex or the other. But Ayres clearly wants to go further. Getting people to see single-sex single-user bathrooms as an intolerable discrimination is just the foot in the door, as this passage reveals:
This is the kind of sex discrimination that troubles only law professors and no one else; the kind that has no relevance or application outside ivy walls? Well, it matters to Riki Dennis, too. An article in last week's New York Times described how Ms. Dennis, a transgendered woman, was beaten for going into the wrong bathroom. Bathroom discrimination literally does hurt people. If the toilet Dennis entered had been gender neutral, there may not have been an attack. Single-sex toilets give bigots another excuse to hit people.

There's only someone there to beat you up when it's not a single-user bathroom. Of course, mixing with men in a non-single-user bathroom feels physically threatening to many women. If we are to base policy on anecdotes, what will you do with the anecdotes of women who are sexually harassed and raped in mixed bathrooms if sex segregation is outlawed? I can't imagine driving alone on the interstate and needing to stop at a rest area and having to use a mixed-sex bathroom! I would truly be afraid, and I think many women would be too. It would be time to buy stock in whatever company makes Depends Undergarments!

Ayres is the author of a forthcoming book "Straightforward: How to Mobilize Heterosexual Support for Gay Rights." I support gay rights, and I like the topic of the book. I get the message Ayres thinks sex discrimination, which many people already care about, can work as a wedge to get people to start caring (or caring more) about gay rights. But this move to take away sex-segregated bathrooms is totally failing to mobilize my support. (And, again, I'm already pro-gay rights!)

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