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Other than the fact that nobody has challenged it in the Supreme Court, how are separate bathrooms for men and women not in violation of the rejection of "separate but equal"?

We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

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    Please keep in mind that racial discrimination extended to areas like education, medical care, employment and transportation, which might be seen as far more essential than toilets. – Trilarion Mar 5 '18 at 17:09
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    I think that this is more a legal question than a political one, as it is not why we have separate (or mixed) bathrooms but why the legal doctrine that banned racial segregation does not apply to segregation by sex. My guess is that it would apply if the bathrooms for one gender were consistently unadequated and unhygienic. – SJuan76 Mar 5 '18 at 17:12
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    @SJuan76 But then the question is not about legal technicalities but about some kind of moral stance - your right to not be discriminated by your gender. That's the part of the law that is in the realm of politics. – Trilarion Mar 5 '18 at 17:19
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    "men can do some type of business faster" Hey! Not when they get old and their prostate starts to enlarge... ;-) – mickeyf Mar 6 '18 at 14:59
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    @DavidRTribble The fourth amendment prevents unlawful search or seizure, and that is all. I don't know what your doing in the restroom, but if it could be consider as searching or seizing anyone you really should reconsider your restroom etiquette :P Joking aside saying that the 4th amendment offers a 'right to privacy' is a generalization that your misapplying here. Misrepresenting what is in the constitution actually says is quite common and leads to flawed arguments regularly. You can make a legal argument about privacy to justify two restrooms, but NOT using the fourth amendment! – dsollen Mar 6 '18 at 15:56
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In Brown v. Board of Education of Topeka, the Supreme Court stated:

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn.

So the reasoning was that because in society at the time segregation was thought of as one group being inferior to the other, racial segregation was not consistent with equal protection.

By segregating men and women from each other, neither group stands out as inferior. Perhaps one group is perceived as more messy in the bathroom. However, it is doubtful that justices would consider such a perception to be a substantial interpretation of inferiority.

More particularly, note that four years after Brown v. Board of Education, was Dawley v Norfolk 159 F. Supp. 642 (ED. Va.), aff'd, 260 F.2d 647 (4th Cir., 1958), cert. denied, 359 U.S. 935 (1959).:

In this action by way of declaratory judgment, plaintiff, a Negro attorney at law practicing in the City of Norfolk, Virginia, seeks a mandatory injunction against the defendants to require them to remove the word "Colored" from the doors of certain rest rooms in a courthouse building occupied and used exclusively by four state courts and the judges thereof. Plaintiff concedes that the rest rooms are equal in every respect. The lettering on the doors of the four rest rooms are indicated respectively as follows:

"White Women Rest Room"
"Colored Women Rest Room"
"Rest Room (White Men)"
"Rest Room (Colored Men)"

...

...the Court is in disagreement. Irrespective of the wisdom of maintaining separate white and colored toilet facilities in a state courthouse, there is no more reason to suggest that judges deem Negro attorneys inferior than there is to say that a white attorney is inferior because he may use a rest room marked "White". In federal buildings throughout Virginia, where separate facilities for colored and white have generally been abolished, it in no sense increases or decreases the prestige of any attorney in the mind of the judge or the public. To say that there is a loss of earning power, or a denial of equal protection of laws, or a denial under color of law of equality of treatment, would reduce the law to an absurdity.
...
It should be noted that the Supreme Court at no time has said that all segregation denotes inferiority of the Negro

So Brown v. Board of Education was insufficient to even prevent segregation of white versus colored bathrooms, let alone men versus women.

Therefore, the Civil Rights Act of 1964 was needed to prevent segregation, particularly TITLE II--INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION SEC. 201:

(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

(c) The operations of an establishment affect commerce within the meaning of this title if (1) it is one of the establishments described in paragraph (1) of subsection (b); (2) in the case of an establishment described in paragraph (2) of subsection (b), it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce; (3) in the case of an establishment described in paragraph (3) of subsection (b), it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce; and (4) in the case of an establishment described in paragraph (4) of subsection (b), it is physically located within the premises of, or there is physically located within its premises, an establishment the operations of which affect commerce within the meaning of this subsection. ...

Note that segregation based on sex is not part of the law.

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    > "Sometimes men are thought of as more messy in the bathroom" Every time this topic is brought up and we have cleaners joining into the conversation, it's always mentioned ladies toilets are a lot dirtier than gents. So it's quite interesting that in this topic it's suggested otherwise. – kiradotee Mar 6 '18 at 15:34
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    @kiradotee good point, I changed the answer to not presuppose which group is, or is perceived to be, more messy in the bathroom. – DavePhD Mar 6 '18 at 16:04
  • @kiradotee Even if this anecdotal experiences are true, it still doesn't mean that women are messier than men. Since men often can use an urinal while women need to use the toilet (which is inherently messier), differences might be attributed to this fact. Or not. Who knows. – Thern Mar 6 '18 at 16:29
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    @DavePhD Apparently you're unaware of approaches like "hovering" - many women don't want to actually sit on the seat, because it is disgusting, so they sort of squat over it or just straddle it to piss, which results in urine going all over the place (the very reason the seat was so ick to begin with). A man standing up to pee has some minor issues of splatter (fluid dynamics of splatter is interesting), but it is overwhelmingly cleaner than a woman standing to pee (unless they use something like a P-Style). – pluckedkiwi Mar 6 '18 at 22:01
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    @pluckedkiwi I knew that women hover (or nest), but I guess I misjudged the relative messiness of the hovering. – DavePhD Mar 6 '18 at 22:12
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The constitution does not say anything about 'separate but equal', for or against, directly. So the easy answer is that separate bathrooms are not a violation because you can't violate something that is not constitutionally required.

Of course that's sort of a cop-out, so let's answer the question you're trying to ask without being so overly literal. I'm sure you're referring to segregation and why segregation was ruled unconstitutional yet segregating people by sexes when they use the restroom is not.

Quick sidenote: I'm focusing on cisgender individuals for this question. One could argue that the situation is different when you consider transgender, or other types of genders, individuals. I'm ignoring that group for now to keep this answer from growing too long, and I don't think it is what the OP is interested in right now. Let's just say a separate question about how separate but equal concept applies to transgender individuals' use of restrooms could very well be asked and discussed

The short answer would be that the two sexes are actually being treated equally, whereas segregation was not leading to equality between the two groups that were segregated. To better explain what that means, let's first go over a quick history lesson.

History of Segregation

Segregation was ruled to violate the 14th amendment. Specifically the part offering equal protection. Here is the relevant section:

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

You notice that although the 14th amendment was written specifically to protect the rights of former slaves, the wording does not limit itself to former slaves, the fourteenth amendment applies to everyone! (Though I find it ironic that the very next section offers all males the right to vote, but still excludes females from voting, luckily later amendments have fixed that.)

The most relevant part of the amendment is that last line, stating that all US citizens are offered 'equal protection of the laws'. This means that no law could be passed that offered one group of people (whites) a privileged to use some resources (such as riding the bus or drinking out of a water fountain) while denying another group (blacks/former slaves) that same privilege.

Originally the Supreme Court ruled that this did not prevent 'separate, but equal' treatment. So, for example, you could not forbid one group from drinking out of a water fountain, but you could pass a law saying both groups had the right to drink out of a water fountain, but provide different water fountains for each group. Since both groups gained the same privilege and were treated 'equally' the Supreme court argued this did not violate the equal protection under the law offered by the fourteenth amendment.

The problem was the 'but equal' part. Sure, the Supreme Court suggested that the two groups would be treated equally, but in practice the water fountain for the 'negro' people were always worse than those for whites, not cleaned as well, not maintained, etc. In general the items and locations provisioned for 'negro' use were uniformly worse than the ones provisioned for whites to use. Thus the Supreme court later ruled that the idea of treating the different races 'separate, but equal' was inherently flawed because in practice the separation was being used to treat one group ('negro' people) worse than the other and thus the law was not being applied equally amongst the two groups.

In fact the supreme court went a bit further, by stating that the very act of treating the two races of people separately in this case was harming one of them. Even if both sides had exactly as nice of a water fountain, and had just as desirable of bus seats etc, everyone would know that the reason that the two were separated was because one group was considered to be less than, and thus not worthy of being allowed to interact with, the other group. Telling a group of people they were considered less worthy by segregating them will cause that group to suffer psychological harm, feelings of inferiority or anger at the treatment etc. This was an unfair harm being inflicted on one group, but not the other, by the very act of segregation, and this meant that it was impossible to ever have truly separate, but equal, treatment of the races.

So why doesn't this apply to separation of the sexes?

So why wouldn't this apply to bathrooms? Mostly because the concept of separate, but equal, was not actually illegal by the fourteenth amendment. The problem was that in practice making a division based off of race always told one race they were inferior to another.

When dividing two groups based off of sex this isn't necessarily the case. First and foremost the two sets of bathrooms are generally treated truly equally, unlike what happened with segregation. Both bathrooms are cleaned as frequently. Both are the same size with the same degree of decoration etc. One isn't treated worse because the owners of the bathrooms consider one of the sexes to be somehow inferior to the other. (This is a slight lie, as I believe studies show female bathrooms are cleaned slightly more thoroughly, as women are more likely to complain about unclean restrooms then men are, but the difference is very minor and not due to some desire to slight one over the other.)

Second, and more important, there is no inherent harm in separating the two bathrooms. When you had a separate restroom for whites and blacks, you were effectively telling blacks they were inferior and not worthy of using white's restrooms. This is not the case with separating restrooms between sexes. I don't think either sex feels that the reason they have to use a different restroom than the other is because they are inferior (or superior) to the other sex. This is important, separating the sexes, in this situation, is not causing any inherit psychological harm by its very nature!

Going along with the last point the fact that there are valid reasons for separating the sexes, both because the majority of both sexes would prefer to be separated in the restrooms and because the manner of constructing the restrooms differs due to legitimate differences in the sexes (as males have space dedicated to urinals that females don't) helps to justify a reason for separating the sexes and thus further decreases the odds that anyone will view the separation as a statement against one sex or the other.

I would also point out this is not the only case that separate-but-equal policies exist. There are many situations where two groups are treated separately, but not with an intent to provide unequal harm to the other. As a random example whenever I vote the location I go to in order to vote is based off of my last name, if my neighbor has a last name that starts with a different letter he may be told to go to a different voting location. We're being separated into groups and told to use separate accommodations. However, since the accommodations are generally equal, and the separation is not done with an intent to mistreat or denigrate one group over the other, it's not a violation of the 14th amendment. There are many many cases where it makes sense to separate people into groups, usually for logistical reasons, that are not a violation of the 14th amendment for this reason.

When/if the separation of sexes by bathrooms is proven to cause a disproportionate harm to one group of people over the other then an argument of violating the 14th amendment could be made, but not until then. I will now promptly end this answer before anyone brings up transgender individuals by simply saying that some have made arguments that the transgender individuals are not getting 'equal protection under the law' due to how they are treated with regards of which restroom they may use. I'm sure a separate interesting question could be asked as to how the 14th amendment may be applied to transgender individuals and the law, and I don't have time to get into it right now ;)

  • Comments are not for extended discussion; this conversation has been moved to chat. – Philipp Mar 7 '18 at 22:24
8

The prohibition of discrimination under US constitutional law is not absolute; rather, discriminatory practices must pass one of three standards of review, depending on the type of right being infringed and the class of people being affected.

  • Strict scrutiny is applied when the right being infringed is a fundamental constitutional right (as defined by the courts) or when the discrimination is based on a "suspect classification" (again, as defined by the courts), such as race. To pass the strict scrutiny test the policy must serve a compelling government interest, be narrowly tailored to serve that interest, and be constructed to do so in the least limiting way.
  • Intermediate scrutiny is applied to discrimination that is applied against protected classes of people and which doesn't otherwise meet the criteria for applying strict scrutiny. To pass this test a policy must "further an important government interest by means related to that interest".
  • Rational basis is the standard for all questions that don't meet the requirements for one of the higher standards. To pass this test a policy must be "rationally related to a legitimate government interest". Crucially, it is not necessary for this legitimate interest to be the only or even the primary reason for the policy. All that is necessary is that some legitimate interest with a rational connection to the policy exist.

Something like sex-segregated restrooms would seem to fall under the intermediate scrutiny test. If that's right, then all that is required is that there be an important government interest at stake and that the means of achieving that interest be related to the interest. I don't know that the question of sex-segregated restrooms per se has ever gone to the courts (the question of how transgendered individuals fit into the framework of sex-segregated restrooms certainly has), but I expect the argument would be that there is a government interest in allowing for individuals to have privacy from members of the opposite sex at times when those individuals could reasonably be in a state of full or partial undress, such as when using the restroom, changing clothes, and so on. If you stipulate that interest, then providing sex-segregated spaces for those activities is pretty clearly related to that interest.

2

There is no law to ban gender-segregated toilets because nudity and things you do in bathroom carry social stigma heavier than unequal treatment of genders.

That's pretty much it. The particular part you quoted is about "educational facilities", so it's arguable whenever a bathroom is educational. Until we see someone successfully proving in court that bathroom is indeed an educational facility, bathrooms exist outside of the interpretation you quoted, not in violation of it.

0

There is a legitimate biological basis for different bathroom facilities for men and women, and there's also privacy concerns. None of those hold true for white vs black drinking fountains or schools.

  • there isn't. Just have one large bathroom with a mixture of sit down and stand up toilets. – Clint Eastwood Aug 13 at 14:36
  • @ClintEastwood - You're talking about an accommodation that encompasses those biological differences in scope, but they still exist. For all practical purposes, the men would have use of all the toilet equipment, the women, who are not contortionists, would have access to 1/2. While your and my feelings of "privacy" and modesty might be more practical, that's not true for everyone. In any case, accommodating those considerations does not put anyone at any fundamental disadvantage as a result of the "separate" treatment. – PoloHoleSet Aug 14 at 17:20

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