Professsor John F. Banzhaf III of the George Washington University Law School has been called "the Father of Potty Parity."  *
   Reprinted below is his seminal work in this novel area of law.
* "With technology and social change, more and more is feasible these days, according to the man who might claim 'the father of potty parity' as one of his many titles.  Professor John Banzhaf III, of the George Washington University Law School, was a major force behind legislation around the country that increased the ratio of women's toilets to men's in public restrooms--to shorten the lines for women.  On similar fronts, Banzhaf has pushed litigation to get equal pricing for men and women for haircuts and dry cleaning, and challenged 'Ladies Night' drink specials in saloons. Carter, Spelling Out Relief: Female Workers Argue Lack of Job-Site Toilet Facilities is Unfair, 86 A.B.A.J. 23 (2000).  See also  Moore, Facility Hostility?, Sex Discrimination and Women's Restrooms in the Workplace," 36 Ga. L. Rev. 599 (2002) ("Professor John Banzhaf, III of George Washington University Law School has been a major force behind state legislation that increases the ratio of women's toilets to men's in public restrooms in order to shorten lines for women.")

Recently Professor Banzhaf has filed the first federal "potty parity" complaint.  To read more about it, see, Professor joins case urging Hill potty parity, Ann Arbor News [07/16/02] link  and Restroom-Space Complaint Filed, Suit Savys U-M Lacks Facilities for Women, State News [07/15/02]  link

A controversial topic raises interesting issues of whether equal protection and fairness require equal space, equal access, equal facilities, equal opportunity or, sometimes, equality of results.

    For more than 20 years we have recognized that, with respect to race, it is unconstitutional to have restrooms that are separate but equal.  On the other hand, with regard to the two sexes, the universal norm is restrooms that are separate and equal.  But, in this context, what does "equal" mean?

    Can women truly be said to be liberated when they often stand on interminable lines at the theater, concerts, some restaurants, and in other public places to perform a necessary and often compelling biological function that men usually accomplish with virtually no wait?  Does this problem, which certainly can be corrected by adding additional toilet facilities, amount to unfair discrimination?

    This new frontier in feminism, although not totally unprecedented, does raise interesting issues of whether equal protection and fairness require equal space, equal access, equal facilities, equal opportunity or equality of results; how much of the problem is caused by nature, and how much by nurture; and whether requests for legal relief from sex-based problems sometimes may seem to go too far.

    The precise issue -- whether woman are treated unfairly when restrooms for men and women are equal in size but result in widely disparate waiting times -- has been raised, perhaps for the first time, in the "Restroom Equity Bill" introduced by Delegate John A. Rollison III (R-Woodbridge), and passed by the Virginia Legislature. {1}  It is a very modest proposal, introduced at the request of Mr. Rollison's wife and a female legislative aide, that calls for hearings on the issue around the state and possible eventual amendment of the International Plumbing Code.

    The issue of sex or gender discrimination arising out of the use of restroom facilities is not unprecedented.  It was raised a number of years ago when many buildings began substituting pay toilets for toilet facilities that previously had been free.

    Women pointed out, quite logically, the basic unfairness and discriminatory effect of such policies, even when all toilets in both men's and women's restrooms required a coin for admission.  Because women use toilets and not urinals, it was argued, they would have to pay more often, and there was a fundamental unfairness in not requiring men to pay for use of a urinal. {2}

    But, promoters of pay toilets argued, there was virtually no way to make a workable pay urinal.  Even if there were, or if urinals were replaced by pay toilets, men certainly would be tempted to take out their hostility by relieving themselves anyway.  As a result, statutes were passed in many places that prohibited pay toilets.

    The new problem of restroom equity arises in part from the custom -- often dictated by building-design considerations -- of making men's and women's restrooms of equal size.  Since at least two urinals usually can be put in the floor space required for each toilet stall, men's restrooms frequently have a larger number of facilities (urinals and toilets) than do women's.

    In addition, it usually requires less time to use a urinal than it does to use a toilet.  Thus, even the provision of an equal number of facilities, rather than simply equal floor space, would still result in considerably longer waits in women's restrooms if demand is comparable.

    Providing equal access -- i.e., permitting women to use men's restrooms when their own lines are too long -- is also only a partial solution.  If the smaller number of toilets in the men's room are in use, women still may be forced to stand in line while men are free to use the quicker-turnover urinals.  Moreover, although this make-shift solution is occasionally used at events such as rock concerts, many women and some men probably would find it objectionable on privacy grounds.

    Thus, to provide equality of results, more than equal space, equal access or even an equal number of facilities may be required.  In other words, if women are not to be forced to endure waits much longer than men during intermissions at theaters, for example, it would seem women's rooms may have to be far larger than men's rooms, and have substantially more toilets than the total number of toilets and urinals in the men's room. Or at least some may argue.

    But does a failure to provide such additional space and a larger number of facilities really constitute unfair discrimination and possibly a denial of equal protection?  Perhaps one approach to the problem is to find out how much of the extra restroom time is an unavoidable biological imperative -- i.e., based upon immutable characteristics or specific to only one gender (such as pregnancy) -- and how much is due to factors over which women have control, and therefore can be said to be responsible for; i.e., nature v. nurture.

    Fortunately, two scholarly studies at Virginia Polytechnic Institute and State University have shed some light on the question men always seem to ask women: "What took you so long in there?" The first was a doctoral dissertation by Sandra Rawls about "patterns of behavior in the use of male-female restrooms." The second is a funded study being conducted by Prof. Savannah Day to learn what people do in public restrooms. {3}

    According to Professor Day's study, women frequently spend twice as long as men in the restroom.  They attribute their longer stays in part to having more clothes to manipulate; having children with them; or taking the time to comb their hair, adjust their make-up, smoke or just talk.  But because none of these is an immutable sex-based characteristic, it may seem unfair to some -- and may, to others, constitute discrimination against men -- to provide men with smaller restrooms that have fewer overall facilities simply because many females want to talk, primp or smoke in restrooms.

    These detractors also argue that meticulous scientific studies have demonstrated that a woman can in fact urinate standing up, probably as well as a man, provided that she tilts her pelvis. {4}  There is at least one device available that assists women in this activity. {5}

    There are also facilities called urinettes that permit women "the same speed and convenience that urinals offer to men," provided that these facilities -- like urinals -- "are placed in open banks along a wall." {6}  Thus, although zippered flies do not give women quite the freedom to urinate that men have, women wearing short skirts without unnecessary undergarments {7} could use these devices, and thereby achieve the same efficiency and time savings during urination as men -- at least theoretically.

    Urinettes have not been used widely, however, because of "the privacy needs most women feel in this respect." {8}  But if men are willing to surrender a certain amount of privacy while urinating, it at least can be argued that women who desire the same efficiency of operation -- i.e., equality of results in terms of waiting time -- should be asked to make the same sacrifice.

    The issue of restroom equality, like other issues involving equality, may have no easy answers that satisfy all people and answer all arguments. {9} This is not at all surprising considering the competing arguments, in many other contexts as well, over whether equal protection requires equal access, equal opportunities, or equal results.

    Probably the issue shouldn't be raised in a constitutional context at all, although this is what activists seeking change often do when a problem does not fit easily within existing statutory boundaries.  And maybe no fixed solution, in terms of a legislatively mandated division of restroom space (and/or number of fixtures) between men and women, is best.

    A large stadium or public arena with many different restrooms may wish to allocate far more to women for events that experience demonstrates tend to attract a disproportionate number of women (e.g., horse shows), more for men for events at which they likewise tend to predominate (boxing), and slightly more for women than for men at events attended by both genders in roughly equal numbers. {10}  Those in charge of smaller public areas might seek other creative solutions if freed from any existing requirements that now tend to inhibit them.

    If the Restroom Equity Bill does nothing else, it may help to free us from constraints and assumptions accepted for so long without even a second thought. At the very least, it provided one law professor with the inspiration for a somewhat tongue-in-cheek article finalized on April Fools' Day!

1.   H.R. 164 and Senate 247.

2. See NIK-O-LOK Co. v. Carey, 378 N.Y.S.2d 936 (1976) ("It is a discriminatory tax, in that women often have no choice but to use these pay facilities, while men frequently have access to free toilet facilities."); aff'd, 52 A.D.2d 375 (1976) (also raising the standing issue).  See also Lynch v. Freeman, 817 F.2D 380 (6th Cir. 1987) (providing unsanitary portable toilets for construction workers discriminated against females because of their greater susceptibility to disease and infection).

3. See Baker, "Relief Sought From Restroom Traffic," Washington Post, Feb. 4, 1988, at C6.

4. "Anatomical differences between the male and female result in differences between the sexes in certain aspects of the urination process . . .  In a standing position, however, a fair degree of control is possible [for women] by projecting the pelvis forward or backward (see photographs in Figure 52, [Comparative Male and Female Urination Postures]), Alexander Kira, "The Bathroom" (1977) at 255-260.

5, See "Changing Habits: Le Funelle Tackles Toilet-Seat Worries," USA Today, March 17, 1988, at 2B, col. 2.

6. "Recognition of these problems has, over the years, prompted several manufacturers to offer various female urinals, or 'urinettes,' designed to be used in a hovering or standing/straddling position. The original intent was not only to obviate the problems of physical contact but also to offer women the same speed and convenience that urinals offer to men by being placed in open banks along a wall." "The Bathroom," supra note 4, at 425-26.

7.  "Perhaps the most important restriction [against women urinating standing up] is that posed by our clothing . . .  While in the not too distant past, girdles and so on were worn mostly by women who obviously needed them and, even then, usually only on special occasions, the pattern today is for some form of restrictive undergarments, or combination garment such as panty hose, to be worn almost universally, even by some teenagers." "The Bathroom," supra note 4, at 260.

8.  The Bathroom, supra note 4, at 426.

9. At least that seemed to be true when a group of male and female students at The National Law Center were unable to reach a consensus on any issue even after two hours of heated debate.  That wide-ranging discussion provided the inspiration for this essay.

10.  This would probably mean that women, and even young girls, would sometimes be using restrooms where they would be exposed to the sight of urinals.  But in these more modern times, when even grade-school children are being told about condoms, this would not seem to be a major problem.

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