MARCUS ERRIDGE
Introduction
The theme of World Toilet Day 2018 is ‘When Nature Calls’. This year’s focus on nature-based sanitation solutions also reminds us that while the ‘need to go’ is an essential and natural human bodily function, the ‘place to go’ often remains an indicator of poverty, inequality, and discrimination. This article explores gender-based discrimination in public bathroom access and the human right to sanitation in the United States, focusing on the cases Grimm vs. Gloucester County School Board and Mickens v. General Electric Company, as well as North Carolina’s House Bill Two (HB2).
Attaining the rights to safe, affordable, and sustainable water and sanitation should not be looked at in isolation, but as part of a wider drive for universal human rights. Former Special Rapporteur on the Human Right to Water and Sanitation Catarina de Albuquerque identifies five core criteria that cut across all human rights: non-discrimination, participation, accountability, impact, and sustainability (Albuquerque: 2012, p. 33). Benjamin Meier et al (2014) identify water and sanitation as “underlying determinants of health and contributors to individual dignity and public welfare,” and note the role of overlapping indicators that also encompass the rights to “life, health, gender equality, work, housing, an adequate standard of living, and development” (p. 173). UN Water (2016) suggest that due to its interconnected nature, attaining the water and sanitation targets in Sustainable Development Goal (SDG) 6 would also increase access to education, improve workforce productivity, and reduce poverty and inequality in support of SDGs 1, 4, 5, 8, and 10.
Human rights attainment can encompass both positive and negative rights. State obligations to ensure human rights can take the form of negative or positive duties, while at an individual or collective level those seeking their rights can make both positive and negative human rights claims. Positive human rights claims require action in the hope of lifting all to the same point of opportunity, while negative rights claims target the “removal of uneven constraints” (Davina Cooper: 2004, p. 25). This concept can be seen in the human right to sanitation. Positive rights-claims for sanitation are often associated with ending Open Defecation (OD) and providing access to toilets where none exist, while negative rights-claims for sanitation can be identified in the removal of discriminatory barriers to public bathroom access. The examples discussed in this article concern how a particular and underexplored form of negative rights-claim for the right to sanitation could be made outside of a developmental lens.
The Public Restroom on Trial
In recent years, a number of controversial ‘bathroom bills’ and related court cases in the United States have seen access to public bathrooms denied. Public bathrooms are spaces where public and private spheres meet and have long been a site of controversy, discrimination, and stigma. Yet the public bathroom has also been associated with civil rights resistance: “almost all the social justice movements of the last century in the United States have included struggles for adequate toilet facilities” (Alison Kaufer: 2013, p. 154). Judith Plaskow even suggests that “access to toilets is a prerequisite for full public participation and citizenship” (cited in Kaufer, p. 154).
The case of Grimm vs. Gloucester County School Board (2016) involves Gavin Grimm, a 16-year old transgender student who was granted permission to use the male bathroom at his high school. Then, after parents complained, the school withdrew their permission, “sending him to a converted utility closet to relieve himself” (Michael Scherner for TIME: 2016, p.33). Grimm subsequently took the Department of Education to court for violating Title IX of the Education Amendments of 1972, which prohibits gender-based discrimination and applies to all schools (US Court of Appeals, Fourth Circuit: 2016, p. 8). The Court of Appeals found that “G.G. and any other transgender students like him are being singled out and denied access to restrooms consistent with their gender identity solely on that basis” (p. 15). The ruling also addressed the parent’s initial complaint that “any recognition of this discomfort as a basis for discriminating would undermine the public interest” (p. 22). As Scherner notes, ultimately “[t]he judges found that the Department of Education was reasonable in ruling that ‘sex’ in public law does not mean just the marker on a birth certificate, but also gender identity” (2016, p. 34).
In the case of Mickens v. General Electric Co (2016), Mykel Mickens, a transgender employee of General Electric in Louisville Kentucky, claimed that he was “instructed not to use the bathroom that aligns with his gender identity” and then “faced reprimand for returning late from his breaks because of the location of the restroom he had to use” (US District Court: 2016). The prosecution established that this denial of bathroom access formed part of a wider pattern of gender-based and racial discrimination suffered by Mickens at work. His case pursued claims against General Electric based on violations of the 1966 Kentucky Civil Rights Act, the 1964 US Civil Rights Act, and the 1970 US Occupational Safety and Health Act. This combination of violations illustrates how Mickens’ denial of bathroom access intersected employment, health, race, and gender-based discrimination at a domestic legislative level.
North Carolina’s House Bill Two (HB2) was a controversial piece of state legislation passed in March 2016 and then (conditionally) repealed a year later. HB2 sought to restrict bathroom access to “[t]he physical condition of being male or female, which is stated on a person’s birth certificate” (General Assembly of North Carolina, HB2, 2016-3). The law has been viewed as a response to a City of Charlotte ordinance passed in February 2016 that allowed “transgender people to use the restroom that matches their gender identities” (Scherner: 2016, p. 35). HB2 was designed to quash the Charlotte ordinance and prevent any similar measures being passed in the state. This move was met with a strong public reaction across the US, and as a result, North Carolina “suffered significant financial losses through travel bans, boycotts, and lost jobs” (Robyn Wilson: 2017, p. 1376).
Ultimately, the strength of evidence ruled the case in favour of Gavin Grimm. Yet Grimm’s case perhaps only succeeded because the school had initially granted and then retracted permission. The Obama Administration issued an updated set of Title IX funding guidelines, “which mandates that schools receiving federal funds may not discriminate based on a student’s sex, including a student’s transgender status” (Alberto Arenas et al: 2016, p. 20). Yet these guidelines had no legal authority to overturn state law, merely to withhold funding, and they have since been rescinded by the Trump Administration. Arguments made by the Fourth Circuit established that Grimm’s case was in the public interest and therefore should be reviewed by the US Supreme Court. But in March 2017, the Supreme Court refused to review the case.
Mykel Mickens’ case may have in part succeeded due to the combination of race and gender-based discrimination in his claim, alongside a stronger legal tradition of workplace discrimination legislation. While there was public backlash to HB2 (Wilson: 2017, p. 1383), it was by no means the most openly discriminatory ‘bathroom bill’ in the US. A bill passed in Florida in March 2015 made it “a misdemeanour for anyone to knowingly enter a bathroom that didn’t match the sex on their driver’s license or passport” (Steinmetz: 2015). Add to this a slew of other rulings by the Trump Administration that negatively impact transgender and non-binary gendered persons in the US.: from banning transgender persons from serving in the military to seeking a limitation of gender definitions to male or female at birth by threatening the 14th Amendment. At best, what remains is an incoherent legal pathway facing future public bathroom discrimination claims.
Bodies and Bathrooms
Gender-based discrimination in public bathrooms partly occurs because heteronormative thinking designates some bodies as ‘out of place’ in public spaces, leading to covert and overt forms of persecution. “Persons who are transgender, transsexual or intersex often face serious human rights violations, such as harassment in schools or in the workplace” (UN Economic and Social Council: 2009, p.10). Important critiques found in transgender, queer, Crip, and feminist theory help illuminate some of the societal constructs underpinning ‘acceptable’ genders, ‘natural’ bodies, and ‘ideal’ bearers of rights in public spaces (for examples see Anne Enke (2012), Robert McGruer (2006), Diane Richardson (2017), and Margaret Shildrick (2009)). So here is a question to consider for World Toilet Day 2018: what happens when ‘nature calls’ for those deemed ‘unnatural’?
Proponents of ‘bathroom bills’ often stoke public fear by equating transgendered persons with sex offenders, intentionally creating space for fictitious constructs of the threatening and unnatural ‘other’ to play into public safety narratives. There is no data to support the claim that trans people pose a specific violent threat in public restrooms. In fact, several sources claim that “[t]here have been ‘zero reported cases’ of trans people attacking men, women, or children in any bathroom” (Wilson: 2017, p. 1401). If public safety were the motivating factor for such legislation, then the most at risk individuals should have their safety considerations factored in, if not prioritised. For many trans and non-binary gendered persons, public restrooms can be intimidating, unwelcoming, and unsafe spaces. Public spaces also pose a much greater risk of violence for the transgender community: “trans people have a very high murder rate and are subject to a greater deal of violence” (Dean Spade cited in Enke: 2012, p. 185). A recent survey of one hundred trans persons in Washington, D.C. found that “70% had been denied restroom access or harassed, and 58% said they had avoided going out in public because they feared being able to find a bathroom” (Scherner: 2016, p. 36).
As a relatively new human right with developing norms, the emergence of sanitation as a distinct human right presents some conceptual challenges. Highlighted in January 2003 by the ESC Committee’s General Comment no. 15 on the Right to Water, the rights to water and sanitation were then concretized in July 2010 by UN Resolution 64/292 as “inextricably linked to the highest standard of physical and mental health, as well as the right to life and human dignity.” In September 2010, UN Human Rights Council (HRC) Resolution 15/L.14 then confirmed that sanitation was “essential for the full enjoyment of life and all human rights,” and clarified states legally binding treaty obligations. Specifically, the resolution stated that the “Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESR), the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) also applied to water and sanitation” (UN HRC Res. 16/2, 2010). UN Human Rights Council (HRC) Resolution 15/L.14 defines access to the human right to sanitation as “essential for the full enjoyment of life and all human rights.” In practical terms, provision of sanitation relates to the “collection, transport, treatment and disposal of human excreta, domestic wastewater and solid waste, and associated hygiene promotion” (COHRE: 2008, p. 17).
So how does the human right to sanitation relate back to Grimm, Mickens, and HB2? Gavin Grimm and Mykel Mickens were individually denied bathroom access by public and private institutions based on their genders, alongside educational, workplace, and racial discrimination while North Carolina’s HB2 and similar ‘bathroom bills’ collectively discriminate based on gender. Where discrimination itself is a human rights violation, in these examples, the human right to sanitation is arguably also being challenged or denied. Public restroom discrimination based on gender is also a violation of the human right to sanitation.
Human rights treaty obligations require states to “address discrimination against LGBT and intersex persons” (UN: 2014: p. 16). States are also required to ensure that conditions are in place for everyone to realise their right to sanitation, to create a space within which access to sanitation can be made possible. The overarching requirement being that toilets are “safe, hygienic, secure, socially and culturally acceptable, provide privacy, and ensure dignity” (Albuquerque: 2012, p. 105). Perhaps the non-binding Yogyakarta Principles offer the clearest links between human rights, sanitation, and gender-based bathroom discrimination. Among the YP+10 Principles added in 2017, Principle 35 states:
Everyone has the right to equitable, adequate, safe and secure sanitation and hygiene, in circumstances that are consistent with human dignity, without discrimination, including on the basis of sexual orientation, gender identity, gender expression or sex characteristics (UN: 2017, p. 13).
Yet, how responsibility for ensuring the right to sanitation should be attributed, what exactly constitutes a human rights violation in denial of the right to sanitation, and how this right can be claimed, remain opaque.
Conclusion
The Grimm and Mickens cases demonstrate successful examples of bathroom discrimination litigation, where denial of access to the human right to sanitation at work and school have been overturned. While the state-to-state nature of US domestic law complicates the legal trajectory of any potential rights claims, gender-positive bathroom access legislation has been passed in some school districts. For example, since 2014 Maine’s Orono School District “cannot bar a transgender girl from using the girls’ room” (Scherner: 2016, p. 32). Public boycotts and increased federal guidelines that emerged in response to ‘bathroom bills’ also strengthened support for the right to sanitation claims from civil society. However, the failure to see a bathroom discrimination case at the US Supreme Court means that domestic legal remedies have not been exhausted. Under international human rights law, this is normally a prerequisite for regional or international human rights mechanisms to open up as a pathway for further rights claims. A Supreme Court decision also provides a legal levity that impacts local domestic law, as seen in rulings such as the June 2015 confirmation of same-sex marriage as a right. However, with the recent contentious appointment of Justice Kavanaugh expected to shift the ideological position of the Supreme Court even farther to the right, this situation is unlikely to change.
As we consider when, where, and for whom ‘Nature Calls’ for World Toilet Day, let us also think about how claims for the right to sanitation might manifest outside of a developmental lens. It is essential to focus on how any human rights claim must involve acknowledgment and visibility of the claimant. Invisibility enables discrimination and allows for fictitious constructs of non-normativity to feed into paranoid and persecutory narratives of ‘bathroom bills’ and similar repressive legislation.
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Meet the author
Marcus Erridge is a PhD candidate on the Human Rights in Contemporary Societies programme at the Centro de Estados Socials (CES), University of Coimbra, Portugal. His research focuses on the human right to sanitation. He holds an MA in Understanding and Securing Human Rights at the University of London’s Institute of Commonwealth Studies and has worked in university administration and for NGOs as a Data Analyst and Senior Research Associate in the UK and US.
Rights! 