While recent Massachusetts legislation , like the new federal guidelines, addresses a crucial issue of access to sex segregated facilities, it does not challenge the binary concept these facilities represent. Rather, it adjusts the definitions. But any binary categorization system will always be at war with ambiguity. This clash is why the position held by those proposing bathroom bills intended to segregate toilets by the sex announced on one’s birth certificate is incoherent: They are not in fact eager to welcome the post-operative transgender woman into the men’s room when her birth certificate still indicates M. Her very existence threatens their belief in the immutability of the binary categorization they want to enforce. Rather, in the absence of birth certificate scanners at the entrance to every toilet, the way these laws will be enforced is by shaming and harassing those who do not “pass” as the gender signified at the door (whatever their birth certificate says). The real point of these laws is to signal to those who have crossed or who stand astride the gender binary that they are not welcome among the rest of humanity and its biological functions.

Bathrooms are so associated with male/female binary gender norms that an image of a figure in a dress next to a figure without a dress is universally understood to indicate where to find the toilet. Whether these icons correspond to what we actually wear doesn’t matter: Girls follow the sign with the dress even if they are wearing slacks, and the kilted man knows to follow the unskirted signifier. Relieving oneself is so strongly associated with sex segregation that even a unisex toilet is typically designated by male and female icons side by side.

Recent political battles throughout the country suggest we are having trouble with going to the bathroom. Or, more precisely, with who goes to the bathroom next to us. In arguing for a preliminary injunction against enforcement of the Obama Administration guidelines on access to public restrooms, the State of Texas argued that Title IX was never intended to “open all bathrooms . . . to members of both sexes.” Of course, the Obama Administration guidelines do no such thing. But maybe they should.

What if instead we all just relieved ourselves together in compartmented toilets that were not sex segregated? Architects like Matt Nardella have created plans for multi-doored unisex facilities that gain the space for extra stalls by joining the handwashing place into a single area. This post-urinal space would bring a number of benefits. For those who feel rejected and unwelcome on either side of the sex-segregated facilities, relief in relieving would be an obvious boon.


For the rest, the benefits would be more subtle. It’s hard to gauge the daily effect of this segregation on our psyche, given how little thought most of us devote to which door to use. When we “get it wrong,” though, the effect is more obvious. If we misunderstand the sign, or misremember which way to turn and end up in the “wrong” facility, our sense of shame and humiliation when we recognize our error can be palpable, even if there are no witnesses. In the same way, but less obviously, every time that we don’t get it wrong, our sense of rightness is reinforced: “Here I am, going to the girls’ room because I’m a girl.” The act of shoehorning ourselves into our gender day after day may be like putting on slightly ill-fitting shoes day after day: commonplace, but possibly damaging in the long run. It limits our understanding and our compassion for those whose gender presentation differs from our own or from those we consider the “opposite.”


But what if we replaced that subconscious gender-confirming thought with “Here I am, a human doing what other humans do, in a place that offers me good enough privacy considering I am out in the public sphere?” Each day we would think that much less about the gender to which we belong. Each day we may gain openness to the diversity of human experience.


Susan Etta Keller is a professor of law and associate dean for academic affairs at Western State College of Law.