This Article addresses the issue of sex‐separation in public intimate
spaces, e.g., public bathrooms, changing rooms, locker rooms, shower
rooms, etc. ሺcollectively called “bathrooms”ሻ. It challenges widely‐
circulated claims that sex‐separation in bathrooms was a historical
development of the late nineteenth century and that the primary reasons
for it were sexism, patriarchy, Victorian modesty, and class elitism.
Instead, it argues that sex‐separation in bathrooms dates back to ancient
times, and, in the United States, preceded the nation’s founding. It argues
as well that a key purpose of sex‐separation in bathrooms was to protect
women and girls from sexual harassment and sexual assault in the
workplace and other venues.
In the bathroom debates, the question of how bathrooms
first became sex‐separated has become a central one. Two theories have been widelydisseminated in the press as fact. One is associated with Professor Sheila
Cavanagh, who argues that the very first instance of sex‐separated public
toilets occurred at a ball held in a Parisian restaurant in 1739. She argues
that the Parisian upper‐classes initiated this separation “to indicate class
standing and genteel respectability.”
Professor Terry S. Kogan has offered a second theory that purports to
explain how sex‐separation became such a widely‐embraced norm. He claims that the practice arose in the late nineteenth century. Kogan maintains that when the Industrial Revolution brought large numbers of women out of the home and into factory workspaces, authorities believed that a practice of men and women using the same toilets would be indecent. Authorities also worried, Kogan argues, that the spectacle violated their ideal that men and women by nature occupied “separatespheres.” Kogan argues that a Massachusetts labor law statute, passed in 1887, was the first U.S. law mandating sex‐separation.
In conclusion, I reject the tales of the alternative bathroom histories as
too narrow. I suggest that their worst error is not merely factual, but
rather an approach that ignores and even contorts the histories and
experiences of other vulnerable groups, in this case, women and the poor,
even as they seek rights for transgender persons. Women have fought for
centuries to recover and preserve these histories. These stories are key
pillars supporting their current claims to protections against
discrimination.
The Article concludes that the alternative bathroom histories fail. As
they propose an explanation of sex‐separation that advances the interests
of some sexual minorities, they offer a narrative that oppresses women
and the female‐bodied. They ignore the stories of women’s lives and, in
particular, their struggles with sexual assault and sexual harassment. They
similarly ignore the struggles of the poor for safe intimate spaces. Women
and others must push back on approaches that contort women’s history,
for they are rooted in sexism and patriarchy, even when they may be
intended to advance the freedom of other groups.
Source: Sexism in the “Bathroom Debates”: – SSRN-id3311184.pdf








