When most people consider the ever-deepening crisis of American infrastructure, they imagine crumbling roads and bridges, decrepit schools and hospitals, or dysfunctional railways and power grids. This post calls attention to a different, often overlooked component of American infrastructure, equally decimated by decades of austerity and privatization — public restrooms. Specifically, this post makes an argument (developed more comprehensively in my forthcoming dissertation) in favor of a constitutional right to public restroom access, grounded in state constitutional provisions dedicated to public health.
The Problem of Bathroom Scarcity
The U.S. public toilet emerged during the late nineteenth century amidst a wave of reforms meant to respond to the nation’s rapid social and economic transformation. As the forces of industrialization and immigration brought thousands of men and women onto the city streets, social reformers introduced urbanization interventions focused on sanitation, hygiene, and improving public moral character. Inspired by the standalone public urinals of Paris and the more comprehensive comfort stations of London, urban planners, philanthropic sanitarians, and advocacy groups pushed for the installation of public comfort stations to meet the daily needs of America’s expanding urban population. Public toilets were intended to clean up urban spaces, keep men out of drinking establishments, and shield women’s bodies from prying eyes.
Yet, even though the opening of a comfort station signified a city’s sophistication and modernity, public toilets were never without opposition. Officials universally bemoaned the price tag of their construction and maintenance. Further, these municipal facilities could not match the splendor and amenities offered by the private sector, such as hotels and department stores. Nor could they provide the surveillance and segregation necessary to deter vandalism and the mixing of social classes. Eventually, as a significant proportion of the population came to rely on automobiles and fled the city for the suburbs, comfort stations fell into disuse and became synonymous with crime, sexual activity, and filth. Public toilets transformed from a civic benefit to a civic burden, and most of them have continued to be shuttered over the last half century.
In the absence of state provisioning, the peeing public has been increasingly forced to rely on private providers. In fact, what most people now think of as a “public toilet” would be more accurately described as a “publicly available toilet.” These are the toilets offered by private businesses such as shopping centers, restaurants, and coffee shops. State-provided bathrooms still exist, of course, but largely in parks and government buildings such as libraries.
The availability and quality of (privately owned) public toilets can be unpredictable, leading to social disparities in access. While the widely adopted and influential International Plumbing Code states that “structures and tenant spaces intended for public utilization, customers, patrons and visitors shall be provided with public toilet facilities,” enforcement of the plumbing code happens only during the permitting process and when a property owner seeks the certificate of occupancy, not when a business is in operation. And because of their property rights, building and business owners can set the terms of who can and cannot use their restrooms, as long as they do not violate antidiscrimination laws. Thus, we have a system whereby bathrooms can be restricted via “customers only” policies or where bathrooms are simply not provided at all (“no public restrooms”). Such policies are often applied inconsistently depending on the customer, the staff on duty, and even the time of day, leading to widespread discrimination based on appearance, race, socioeconomic status, and other implicit categories hidden in the moniker “customer.” The ongoing COVID-19 pandemic has only exacerbated these issues, as many businesses that once provided restrooms have permanently closed and others have limited access because of fears of contamination.
The consequences of restroom scarcity have been stark. Consider, for example, the recent spread of hepatitis A across the United States. Transmitted through the fecal-oral route, hepatitis A is largely preventable with vaccination and good hand hygiene. Yet, according to the latest numbers from the U.S. Centers for Disease Control and Prevention, 37 states have reported hepatitis A outbreaks since 2016, comprising 44,465 cases, 27,190 hospitalizations, and 424 deaths. These outbreaks, which have occurred primarily among people experiencing homelessness, are the product of crowded living conditions, a vulnerable population with compromised health, and a lack of available and accessible bathrooms.
While the spread of hepatitis among those experiencing homelessness is but one severe example, a lack of public toilets impacts us all. On average, a person requires a bathroom seven times a day, making the public restroom a key component to the health and livability of a community. Their absence escalates the potential for myriad physical, mental, and social harms to those who need them on a moment’s notice or rely on them for regular relief. Young or old, sick or healthy, able bodied or disabled, all people require a toilet. By not having enough public bathrooms, our state and local governments stymie the potential for a richer public sphere marked by diversity and vitality. Too many people fear the biological repercussions of straying from home — a phenomenon known colloquially as the “loo leash” or “bladder leash.”
What, then, should be done?
A Right to Public Bathrooms
Given the inequities and limitations of our public reliance on private toilets, I believe that only a public legal right to bathroom access has the potential to shift power from the whims of private business and prioritize the biologic needs of people over profit. While the right to restrooms—and, more broadly, sanitation—may be a foreign concept in the United States, the idea commands significant legal and political support around the world. The United Nations General Assembly has recognized sanitation “as a human right that is essential for the full enjoyment of life and all human rights.” And the Committee on Economic, Social and Cultural Rights and the UN Special Rapporteur have outlined the key elements this right should embody, including availability, accessibility, affordability, quality and safety, and acceptability. (The United States has not signed onto this right.) Several nations include rights to sanitation in their constitutions, and litigation in some jurisdictions has been pursued to realize those rights. When it comes to a specific right to public bathrooms, the high courts of Bombay and Patna have declared access to toilets as a fundamental right in light of sex-based and socioeconomic discrimination encountered by many when trying to access a bathroom in public.
In the United States context, I argue that state courts should recognize a right to public toilets as part of the states’ plenary police powers to promote public health. Indeed, eight states already have constitutional provisions pertaining to public health, and although the case law clarifying and elaborating these commitments is thin, the decisions broadly support the state’s obligation to delegate authority to counties and local boards of health to make rules and regulations necessary to protect and advance public health. State action in public health has often been undertaken to address collective action problems that cannot be sufficiently or properly addressed by the marketplace. Public toilets pose such a dilemma. With too few truly public toilets, reliance on private businesses to supply restrooms has allowed for discrimination to flourish and for many to go without biological relief. By finding a right to public restrooms within the broader obligation to establish a minimum level of health and safety for their citizenries, states can reinvigorate long-standing commitments to invest in and support the basic amenities necessary to minimally sustain their populations.
In the presence of such a right, actions by state or local governments to close public restrooms, neglect the maintenance of facilities, or avoid the provision of restrooms in the face of clear public health harms could be framed as violations of constitutional obligations. It has long been recognized that state courts have considerable latitude when it comes to the interpretations of their respective constitutions. Famously, Justice William Brennan wrote in 1977, “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.” More recently, Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit has similarly argued, “[s]tate courts have authority to construe their own constitutional provisions however they wish. . . . As long as a state court’s interpretation of its own constitution does not violate a federal requirement, it will stand[.]”
State and local governments know that there is a toilet crisis in their communities. Some municipalities have pursued temporary solutions like portable toilets and handwashing stations. But those resources are far from stable. Several states have passed laws granting emergency access to the employee restrooms of some businesses for those with qualifying medical conditions. Similar laws have been passed or considered for employees of the trucking industry. In 2019, Washington, D.C., enacted a law committing the district to undertake a toilet audit and pilot project to improve local toilet availability. Similar legislation has been proposed in New York and Chicago. And although some critics argue that jurisdictions should simply install pay toilets, fifteen states prohibit pay facilities by law, while three others allow them but explicitly require public toilets be installed alongside pay stalls and urinals.
Bolder, more expansive legal and policy moves are needed. Unlike narrow, piecemeal laws that grant bathroom access to select groups of people, an individual constitutional right would make bathrooms available to the many and thereby eliminate the power imbalances people face when trying to find and use a publicly available bathroom. Furthermore, a recognized state constitutional right can compel the political branches of state and local governments to pursue a wider variety of public bathroom options that will take bathroom provision out of private hands. Companies, business owners, and even governments have shown their resistance to providing available and accessible toilets. An empowered public will be necessary to move towards improved health and wellbeing. We all must use the bathroom, and we deserve a legal, political, and economic system that recognizes our innate biology and provides us with the means to get the job done safely, healthfully, and with respect.