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Comptes Rendus

Searching for the Model Toilet:

An Interview with Mary Anne Case, Arnold I. Shure Professor of Law, University of Chicago

Mary Anne Case

PROK: Would you tell us a little about the survey you’ve been conducting online (see for the past several years on the differences between public restroom facilities for men and women. How did the idea for this project come to you?

MAC: It was not from waiting on one too many long lines for the ladies’ room. Rather, as a scholar of the constitutional law of sex equality, I was struck that vehement opponents of the Equal Rights Amendment listed among the parade of horribles the ERA would bring in its wake not only women in combat and same-sex marriage, but an end to sex-segregated restrooms. I began asking myself first, is this true, and second, what difference might it make – what if anything important might we lose if toilets ceased to be sex-segregated spaces. I also came to see existing sex-segregated restrooms as a perfect test case of separate-but-equal, because they forced a concrete answer to the question of what is being equalized. Then I came to realize that there was very little concrete information out there about to what extent and along what dimensions there was equality between male and female restrooms. I began forcing men with whom I was out and about in public spaces to report back on the details of what was available to them in the restroom, so I could compare it to what was available to me. The web survey was an extension of those informal efforts to gather information and raise consciousness.

PROK: What are the major differences between men’s and women’s restrooms?

MAC: Men’s and women’s restrooms are often equal only in square footage, which is about as meaningless and formal a measure of equality as can be imagined. Equal square footage leads to unequal excreting opportunities, because urinals take up less space than stalls. The number of excreting opportunities for women is often further reduced because more space in women’s rooms tends to be given over to things such as fainting couches, full-length mirrors and vanities. Because none of us knows how the other half lives, both men and women tend to assume that the facilities available to the two sexes are more equal than is often the case. Both men and women tend to attribute the long lines for the women’s room simply to women’s taking longer, rather than taking into account that the number of stalls available to women is often less than the combined total of stalls and urinals available to men. And when some men learn, to their surprise, that women have mirrors available to them, they can also feel deprived and aggrieved. This happened to male law students at the University of Virginia, who demanded an equal opportunity to primp in front of mirrors in preparation for on campus job interviews.

PROK: How does this survey contribute to your work on constitutional arguments for the equal protection of the sexes?

MAC: I am one of the last unreconstructed proponents of the now somewhat unfashionable “sameness” branch of feminist jurisprudence. This means that I remain quite committed to the abolition of legal rules that distinguish on their face between males and females. In my view, an appropriate goal of constitutional equal protection for the sexes is not just to prevent women’s subordination, but to make sex irrelevant to an individual’s treatment by the law, and, more broadly, to his or her life chances. As I noted above in discussing opposition to the ERA, the prospect of mandatory sex neutral public toilets has long been seen as an argument stopping reductio ad absurdum for the "sameness" approach to feminist legal theory, which is why I felt the need to examine it more carefully.

When I began to consider what if anything important would be lost if toilets ceased to be sex-segregated spaces, a central question was whether the opportunity to be alone with one’s own, with one’s own defined by sex, should be seen as a cost or a benefit of sex-segregation. It’s obvious that many women see it as a benefit. I’m more inclined to see it as a cost.   I find support for my view in popular culture, as, in film after film, the uppity woman gets her comeuppance when she’s stopped at the door of the men’s room, which serves de facto as the executive washroom. What Lacan calls “laws of urinary segregation” are one of the last remnants of the segregated life of separate spheres for men and women in this country, now that the rules of etiquette no longer demand that the women leave the men to their brandy and cigars after dinner in polite company.

Unfortunately, rather than moving toward more integration of the sexes, in the years since I started this project, Western societies have started to reinscribe segregation, with the Bush administration endorsing more single sex education and with many European countries accommodating the wishes of devout Muslims in their population for more sex-segregated public spaces. I believe that integration of the sexes as we have come to know it in Western liberal democracies over the last century is a cultural practice that is as rare on the face of the earth over long history, as fragile and endangered, and at least as worth defending and in need of defense as the practices of cultures more generally recognized as threatened, from the Bushmen to the tribes of Papua New Guinea. An important part of my argument for constitutional sex equality is to insist that we preserve our cultural commitment to an integrated world in which unrelated men and women freely and habitually mingle for purposes not limited to coupling and in which the spaces from which people are excluded on the basis of sex are kept to a minimum.

PROK: What would your model toilet facility look like?  Are you in favor of family restrooms as a model for the future?

MAC: When I began my research, I thought I would be recommending as a model something like the typical airplane bathroom, a facility used seriatim by members of both sexes, one at a time, in complete privacy. This would be consistent with the approach I’ve taken to other situations in which sex distinctions have been abolished in law – instead of assuming that what was previously available to men is appropriate for everyone, I’ve urged consideration of sameness around a feminine standard. Thus, instead of moving women toward facilities more like the male urinal, as proponents of products like the “she-inal” have urged, why not give everyone the privacy women have become accustomed to and are thought to want?

One of the things I learned from my research is that there is apparently a vast distance between what I would prefer and what many other women prefer. Not only do many women object to sharing a restroom with men, whom they perceive as less tidy, as well as potentially more threatening, many women also value the women’s room as a site of female sociability.

I do think, however, that for purely practical reasons, the model of the family restroom has a future. This is because, at comparatively low cost, it can serve a variety of functions – it can accommodate the handicapped of both sexes, including those whose attendants are of a different sex; parents with children of any sex; and the transgendered and others for whom choosing a restroom on the basis of sex is a difficult or uncomfortable task. The model of the family restroom incidentally has the added ideological benefit of mixing things up with respect to sex and gender. Not only are the transgendered freed from a binary choice, fathers will find it easier to care for their daughters and fewer young boys will crowd the already overcrowded women’s room accompanying their mothers. And, as a supplement to segregated restrooms, family restrooms can also serve as swing spaces, avoiding some of the inevitable problems in queuing theory that arise when public spaces are used by unequal and variable numbers of men and women, whether it’s the lecture hall that hosts a feminist theory conference one day and a law and economics conference the next, or the arena that hosts figure skating at noon and a hockey game in the evening.

PROK: Your survey asks participants to report various interesting forms of bathroom behavior. Has anything caught you by surprise?

MAC: A few years ago at a conference, I presented a paper on the cultural uses made of sex-segregated restrooms with the title “On Not Having the Opportunity to Introduce Myself to John Kerry in the Men’s Room.” I got the title from 2004 Democratic Presidential Candidate John Kerry saying to Daily Show host Jon Stewart that what most surprised him in his presidential campaign was the number of people who tried to introduce themselves to him in the men's room. This surprised me too. More generally, I was surprised, given the repeated insistence by men that conversation in the restroom is taboo for them, how much networking does seem to go on in the men’s room. Several junior male lawyers, for example, told me of getting assigned to important cases as a result of restroom conversations with senior male partners.   Maybe the reason some male comics write routines suggesting that women use the restroom as a power center and why some male journalists complained that women had an unfair advantage covering Hillary Clinton is because they’re projecting from their men’s room experiences.

On a more somber note, it continues to surprise me how confident women are that sex-segregated restrooms are safer than integrated ones, given how much male on female crime now takes place in women’s restrooms. Thus, I was not surprised, but I was horrified to read of the 1997 murder of seven year old Sherrice Iverson in the Las Vegas casino women’s room into which she ran to escape from eighteen year old Jeremy Strohmeyer, who had been chasing her. She must have been thinking, “I’ll be safe here. He can’t follow me.” But, of course, he could and did; and there he found the privacy to molest and kill her.  

PROK: Have any thoughts you’d be willing to share on Larry Craig’s recent restroom rendezvous?

MAC: My first thought, far from original to me, is that what makes a men’s room ideal for men seeking men but unwilling to identify as gay, what distinguishes a men’s room, even a men’s room famous as a cruising area, from other venues where men seeking men for sex are likely to find them, is what one says about oneself by walking through the door. The sign on the door just says “Men.” To walk through the door is to identify oneself only as male and not female, something that may pose a dilemma for the transgendered, but is easy and comfortable for the likes of Larry Craig, whereas to walk through the door of a gay bar or a bathhouse is to risk being read to have made quite another statement about one’s identity. Thus at the same moment it inscribes one identity on those who enter, the men’s room offers plausible deniability or liminality as to other identities. 

My second thought is that the Larry Craig incident illustrates some of the contrast between men’s rooms and women’s rooms. Both are sites of sociability, but for women the sociability is typically verbal, whereas men like Larry Craig communicate in silent code. For men, more than for women, toilets are a site of sexual possibility. Not only does more sex seem to take place in men’s rooms, even the graffiti in men’s rooms is likely to be of the “for a good time call…” variety, whereas graffiti in women’s rooms more often warns of date rapists.

My third thought is that the question I’d most like to have answered about Larry Craig’s restroom rendezvous is how likely it was that any proposed sex would have taken place in the toilet itself, as opposed to, for example, in a nearby airport hotel room. I am given to understand that each is a real possibility with respect to sexual encounters initiated in airport men’s rooms, and, in my view, too little attention has been paid to the legal differences between them. Even after Lawrence v. Texas, the 2003 case in which the U.S. Supreme Court extended constitutional protection from criminal prosecution to private consensual adult non-commercial homosexual sex, sex in a public toilet can still be a criminal offense, as can sex for money. If Craig had not proposed to pay his partner, and had proposed that they leave the restroom for a hotel room, his conduct, in my view would be constitutionally protected.  If the sex itself would have been private, consensual, non-commercial and therefore legal, suggesting it to someone, even in a public place, ought also to be legal, especially given that, because of the First Amendment, we generally give even more protection to speech than to conduct. But, as I discussed in a 2003 article in the Supreme Court Review, there nevertheless unfortunately remains some doubt about whether criminal solicitation laws survive after Lawrence. Many of these laws have long focused, not on whether the proposed sex would be legal, but on the likelihood that the proposition itself might be offensive to the person receiving it. One effect of making criminality turn on the likelihood of offensiveness, when combined with the presumption of heterosexuality, is to doubly privilege straight men, who are more shielded from unwelcome approaches by other men than they are hampered in their attempts to approach women in public places.   As a woman who has over the years endured countless unwelcome proposals of sex from men and as a supporter of gay rights who finds it paradoxical to give constitutional protection to sex acts it might be a criminal offense to suggest to a potentially willing partner, I’d like to see an end to laws that make it a crime for one man to propose sex to another, which is the most Larry Craig can be said to have done.

PROK: Toilets are pretty private, and your survey asks for a good bit of information: is there a voyeuristic component to this project?

MAC: Well, if there had been readily available statistical data about what was available in men’s and women’s rooms, I might never have thought to post a survey, so I don’t think the initial impulse was particularly voyeuristic. I also think making imaginative assumptions about what happens in spaces you cannot enter is, in an odd way, as voyeuristic as trying to find out what does indeed happen. Consider the male comic who developed a whole routine around women spending so much time in the restroom because they have a command center there, with hot lines and fax machines, from which they run the world. Or even consider the mundane but false assumption that male and female restrooms are identical, so that if women wait longer on line, it’s only because once inside they spend more time gossiping and primping.

That said, some of the most satisfying moments in my toilet research have involved seeing what I as a woman was not meant to see. For example, a male friend called me into the little boys’ room at the Children’s Museum of Manhattan to see a laminated poster asking “Who can ‘go’ faster?” with the answer “It takes men about 45 seconds to urinate, (pee). It takes women about 79 seconds to urinate. How do you compare to the average? Ready, Get Set, GO!” There was no comparable poster in the little girls’ room. Ever since I read the chapter on urination in Simone de Beauvoir’s Second Sex as a teenager, I knew how effectively men used urination to achieve a feeling of superiority to women, but I hadn’t suspected that this ideology was being formally inculcated by educational institutions like the Children’s Museum.

PROK: Given the conventional methods employed to construct legal arguments, does your toilet survey provide a model for legal research? Is this an example of New Legal Realism?

MAC: It might be if I did it more systematically.