Law and the lavatory: Ruminations on bathroom bans,building plans and gender demands

Abstract

In the current political environment, there is a heightened debate around gender identity and the law. This article provides a reflective approach to exploring legal regulation of gender identity in relation to public bathrooms, with particular attention to access issues for trans and gender diverse people, building on earlier scholarship and recent public debates. Reflecting on these debates, the author draws from their personal experience to examine laws and regulations governing provision of and access to gendered and non-gendered bathrooms in Victoria, Australia and argues for regulatory reforms to mandate the provision of all-gender bathrooms in public buildings alongside gendered options.

I’ve always been fascinated by toilets.

In my undergraduate theatre studies, we staged a site-specific performance in a public bathroom, turning the stalls into confessionals. It seemed so subversive to transform this intense private space into a public performance venue. In ancient times, people would use communal toilets. ¹ In the more recent past, toilets would commonly include an anteroom that acted as a shared communal space and facilitated social interactions. ² Perhaps anterooms existed to avoid the awkwardness of social interaction among the stalls and urinals. While there is an indignity to using this space, this experience of indignity also acts as a social leveller – it is something all of us using this space must go through. As legal scholar Les Moran argues, the fear of inappropriate social contact is written into the architecture of public toilets:

in the use of frosted glass that might provide natural light but prevent a public display; in the design of the stalls; in the erection of barriers between the stalls to secure individuality during the private act of urination; in the separation of space into individual private cubicles; in the provision of lockable doors to secure that individual space; the installation of ceiling to floor partitions to ensure the division of one from another; in the use of brick and stone to guarantee the separation of bodies. ³

Later, in my postgraduate studies exploring the theatricality of the courthouse, I again became fascinated by courthouse toilets and their role and function within legal space. Although there is very little written on courthouse toilets, they do appear – sometimes very prominently – in depictions of the law in film, television and social media. The most famous example is probably the unisex bathroom in the legal offices of Ally McBeal, but there is also the scene in Liar Liar in which Jim Carrey’s character, a lawyer who is unable to tell a lie, assaults himself in the courthouse bathroom to avoid telling the truth in court. ⁴ Courthouse toilet walls are often a location for graffiti, ⁵ much of which is captured on social media. Daragh Carville’s play Male Toilets is set in the bathroom of the Crumlin Road Courthouse, where two characters debate the future of the building since its closure. ⁶ As this play shows, toilets function both as private spaces, sanctuaries even, but are also often social spaces.

There is a conflict between functions of privacy – protecting against exposure of private parts and private acts – and as a public even social space – a place of private discussions and other private acts between people. An ex parte meeting between a judge and a prosecution witness took place in a courtroom bathroom during the infamous Scottsboro Boys trials where nine black teenage men were accused of raping two white women ⁷ (later made into a musical ⁸ ). More famous still is Robert Durst’s confession to murder that was inadvertently recorded, while he was taking a break from filming the docuseries The Jinx, in a bathroom. ⁹

Likewise, the legal debate about what is public in a public toilet and whether the cubicle is a private space within a public space plays out in the legal regulation of the queer male practice of cottaging or having sex in public lavatories. ¹⁰ Against these legal concerns, George Michael famously satirised his arrest in a public toilet in the music video for Outside, radically transforming the toilet into a discotheque replete with mirror balls and dancers. ¹¹ At the same time, laws prevent indecent or offensive behaviour in public, ¹² restricting behaviour in public places such as bathrooms. All of this is to say that toilets are legal spaces, and spaces that should be of interest to all of us in the law.

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Recently, I have found myself caught up in the political debate in my home state of Victoria over transgender people’s access to the bathrooms of their affirmed gender, which exemplifies a greater debate over the functions of toilets as a public space or a space to provide privacy or even safety from other people. Various US states, including most famously North Carolina and Florida, have enacted ‘bathroom bills’ that deny access to public toilets by gender or gender identity. ¹³ Similarly, the British Equality and Human Rights Commission has developed a draft code of practice that stipulates trans people cannot access the toilet that aligns with their gender, following a Supreme Court ruling. ¹⁴ We would be naïve to think that this is just a culture war playing out abroad. Recently, colleagues and I identified several local councils in the Australian state of Victoria that have trans or non-binary bathroom bans in their local laws.

These Victorian local laws typically stipulate that people must access the bathroom that aligns with their sex. This poses two main issues. First, these local laws generally don’t define sex. In considering the meaning of sex at law, the Federal Court of Australia has recently found that a person’s sex recorded on their birth certificate is their sex at law, not necessarily their sex assigned at birth, ¹⁵ but the position is less clear for trans people who have not updated their birth certificate, although obiter indicates that

the determination of the sex of a person may take into account a range of factors, including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially. ¹⁶

Therefore, these local laws could compel trans people who have not updated their birth certificate to access the bathroom that aligns with the sex recorded on their birth certificate. Second, as some bathroom facilities are exclusively male or exclusively female, they cannot be used by non-binary people whose sex is neither female nor male, as these local laws prevent people who do not conform to that binary from accessing such bathroom facilities. This means that non-binary people – and, possibly, trans people without an updated birth certificate – cannot go to a gendered bathroom without fear of breaking the law.

On this basis, it is arguable that these local laws amount to gender identity discrimination in the provision of services, in contravention of the Equal Opportunity Act ¹⁷ and the Charter of Human Rights and Responsibilities, ¹⁸ despite the Local Government Act stipulating that a local law must not be inconsistent with the Charter ¹⁹ and is inoperative to the extent that it does not comply with the Charter. ²⁰ Following complaints to the Victorian Equal Opportunity and Human Rights Commission, the Victorian Civil and Administrative Tribunal recently granted orders to stop enforcement of these laws and progress their repeal, thus reducing the fears of trans and gender diverse people that they may be discriminated against when accessing these facilities. ²¹ While important, this does not, however, address the need to provide public toilets that are truly accessible to gender diverse people, which necessitates reforms to building construction.

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Building regulations are – let’s face it – very boring, but they do raise important questions of gender and the law, which we need to engage with. In a chapter for The Feminist Legislation Project, ²² I raised a problem with the current National Construction Code, ²³ whereby gender diverse building occupants may be compelled to use facilities intended for people with a disability despite the differing needs of gender diverse people ²⁴ and people with disabilities. This is because, while the current Code provides for unisex facilities for people with a disability, it does not provide for general all-gender facilities. What this means is that many members of both cohorts – gender diverse people and people with a disability – will be potentially relying on the use of a single unisex facility, and this could compound inequality for both groups.

Notably, the chapter proposes reforms that ‘do not reduce the number of female and male sanitary facilities’ and facilities for people with a disability. ²⁵ The proposed reforms would simply require the addition of facilities that include all genders – one all-gender facility for every 100 persons accommodated in the building, except for larger buildings such as department stores, shopping centres, restaurants, cafes, bars, schools, multiplex theatres and cinemas, art galleries, sports venues, churches, chapels, public halls and function rooms, which have higher ratios reflecting the higher number of persons accommodated therein – without reducing the ratios for female and male facilities. Recent developments in bathroom regulations (and a commentary on the chapter, which I will turn to later) have caused me to reflect on this approach.

This approach taken in the chapter has been recently adopted by WorkSafe Victoria in its new compliance code for workplace amenities, ²⁶ which – after years of lobbying ²⁷ – includes minimum numbers of all-gender toilets in workplaces without altering ratios for female and male facilities. This recognises that ‘[a]ll employees need to have access to clean and hygienic toilet facilities at work […] and should be given access to […] facilities that are appropriate for their needs’. ²⁸

By contrast, the Australian Building Codes Board has released reforms to the National Construction Code for adoption from May 2026 that allow gendered facilities to be converted to all-gender facilities, taken equally from female and male. ²⁹ While in some ways a step forward, in that it provides facilities for gender diverse people without the cost of building new facilities, this is also a problematic approach that potentially pits different users against one another. It also does not make the provision of all-gender toilets mandatory, but rather optional. Making the provision of all-gender facilities optional ignores the power of the National Construction Code to set clear guidelines that anyone must follow and the fact that building designers will often work strictly to these guidelines, as to do something other than what is required or mandated may involve consultation that can be expensive and divisive. ³⁰ It also ignores that buildings already have the option to go beyond the Code requirements to include all-gender toilets and that those likely to adopt this option will have done so already – and that those who may need to do so may not. What is thus required is Code provisions that are mandatory and do not reduce the existing requirements for gendered facilities.

Rethinking the gendered dimensions of toilets requires not only changes to facilities’ architecture but to their infrastructure, such as reforms to require that adequate means of disposal of sanitary products be provided in all sanitary facilities, not just facilities for use by women as under the current National Construction Code. ³¹ This recognises that men and gender diverse people may also use sanitary products, such as incontinence pads, and, in the case of some trans men and gender diverse people, menstrual tampons, pads and liners. This builds on the BINS4Blokes advocacy campaign promoting the installation of incontinence bins in male public toilet facilities. ³² The City of Melbourne was the first Australian capital city to trial incontinence product disposal bins in male and all-gender toilets in council facilities including libraries and recreation centres, ³³ with more councils since following their lead. ³⁴ This ensures dignity for men and gender diverse people who need to use sanitary products. Thankfully, the reforms to the National Construction Code stipulate that adequate means of disposal of sanitary products must be provided in all sanitary facilities. ³⁵ In addition, the reforms stipulate that a dispenser for sanitary products must be provided in sanitary facilities for use by females. ³⁶ In Victoria, this extends to all-gender sanitary facilities. ³⁷ The latter reforms, however, do not consider the needs of trans men to access sanitary products.

Finally, there are several costs if adequate all-gender facilities are not provided, including health costs, social disruption, economic loss, lost business and tourism, and legal costs. ³⁸ These outweigh the additional cost on business of requiring all-gender facilities. Potential legal challenges could arise because, similarly to the Victorian Equal Opportunity Act, the national Sex Discrimination Act prohibits discrimination on the grounds of sex and gender identity in the provision of goods, services and facilities. ³⁹ Failure to provide adequate sanitary facilities for gender diverse people may thus amount to discrimination, even if it is indirect, and may also create a risk to workers’ health and safety, as noted above. There are reports that North Carolina’s ‘bathroom bill’ that limited access to public restrooms for trans and gender diverse people cost that state more than USD3.7 billion in lost business over a dozen years, ⁴⁰ due to businesses moving out of the state, artists cancelling concerts, sporting events, conventions and television productions moving elsewhere, and tourism declining. In short, changing buildings to provide all-gender toilets can be costly, but not doing so also carries a cost that is both financial and deeply personal, in that it impacts the equal opportunity and human rights of gender diverse people.

Building construction reforms of this kind ensure the health, wellbeing, comfort, and physical independence of gender diverse people in relation to sanitary facilities in public buildings. They also provide a private and safe space for people who may feel uncomfortable or unsafe in gendered facilities, and improved access to sanitary facilities for parents with young children of a different gender. It must be remembered that access to sanitation is a basic human right, ⁴¹ a key determinant of health, ⁴² and essential to basic human dignity, which is a core tenet of human rights law. This right extends to trans and gender diverse people who should be able to access sanitary facilities for their health and wellbeing.

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One of the novelties of the edited collection in which the original chapter appears is that it includes feminist commentaries on each reform. As the editors explain, these commentaries ‘offer a different and critical perspective on the reform being proposed, in recognition of the diversity of feminist perspectives on both substantive issues and the possibilities of law reform.’ ⁴³ In their thoughtful commentary on the chapter, Nicole Kalms and Laura McVey raise concerns with property managers or owners reconfiguring existing toilets as all-gender toilets. ⁴⁴ As they rightly point out, this kind of ad-hoc change erodes the limited dedicated space for certain users and further neglects the needs of those already marginalised in urban design, architecture and planning of public amenities. This includes women from culturally and religiously diverse backgrounds who require gender-segregated and private spaces, including privacy to wash and remove items of clothing such as hijabs.

What is important is that all-gender toilets be provided in addition to and not instead of gendered and disabled toilets. As they point out, there are longer-term consequences where all-gender toilets become the only provision or where a requisite number of gendered toilets are replaced with all-gender toilets, as with the forthcoming changes to the National Construction Code. One of the arguments for this forthcoming change to the Code is that it is ‘cost effective’ and ‘will remain close to the current project cost profile for the provision of sanitary facilities.’ ⁴⁵ While it would be more ‘cost effective’ to replace gendered facilities with all-gender facilities in comparison to adding additional all-gender facilities, it is also necessary to consider the cost on those who may require gendered facilities for the reasons described above. This is particularly important as the Australian Building Codes Board’s reforms have also increased the number of closet pans for female patrons in single auditorium theatres and cinemas, in recognition of the current inadequacy of female public sanitary facilities in these spaces. ⁴⁶

Increasingly, local councils are now providing single cubicle all-gender facilities as an alternative to gendered toilet blocks, which can sometimes cause disquiet in the community. Recently, I was at a council meeting to support the passage of a new inclusive public toilet strategy. ⁴⁷ Much misinformation was swirling that the council would be making all public toilets gender neutral. A petition was tabled from various community members, including Moira Deeming MP, ⁴⁸ and signatories came from as far away as the United Arab Emirates, Kuwait and Jordan. Security had to be called to the building as two angry men at the entrance hassled those leaving over ‘transgender toilets’ and ‘the COVID scam’ – demonstrating both how the issue of toilets has been caught up in wider conspiracy theories and the irony of aggressive men hanging around public buildings to hassle people while complaining that inclusive toilet strategies will lead to aggressive men hanging around public toilets to hassle people. When I shared this on the Twitter/X, I was labelled a ‘troublemaking misogynist’, ‘sicko’, ‘mentally ill’, and various less savoury terms, and advised that I ‘need to stop drinking the fluoride, it’s fogging your judgment.’ All of this is to say that the public debate around public toilets can be toxic.

What undergirds many of these arguments is a fear that trans women, gender diverse people, or men will sexually victimise cisgender women if inclusive sanitary facilities – that is, either all-gender facilities or gendered facilities based on gender identity not sex assigned at birth – are in place. This assumes that trans women seek access to female bathrooms with predatory intent towards cisgender women and presumes that trans women are ‘men’ trying to obtain easy access to women’s spaces. This claim lacks evidence. There is no evidence of increase in harm to cisgender women from inclusive sanitary facilities, ⁴⁹ and evidence to suggest that opposition to inclusive sanitary facilities is motivated by prejudicial attitudes towards trans people rather than concerns about women’s safety. ⁵⁰ It should be noted that similar claims have been made in the past against same-sex attracted people, ⁵¹ echoing the moral panic around cottaging mentioned earlier. On the contrary, there is evidence to support inclusive sanitary facilities. Large-scale studies show most people are in favour of inclusive sanitary facilities, ⁵² and inclusive sanitary facilities are perceived to be safer by gender and racial minorities. ⁵³

Mandating the provision of all-gender sanitary facilities also aligns with the principles set down in the Gender Equality Act, which requires the Victorian public sector to promote gender equality, including the principle that gender inequality may be compounded by other forms of discrimination or disadvantage that a person may experience based on their gender identity. ⁵⁴ This principle recognises that gender diverse Victorians may experience discrimination or disadvantage that compounds gender inequality. Providing all-gender facilities in addition to gendered facilities thus accords with the requirement for Victorian public sector entities to take necessary and proportionate steps towards achieving gender equality, ⁵⁵ and the positive duty under the Equal Opportunity Act to take reasonable and proportionate measures to eliminate gender identity discrimination. ⁵⁶ The positive duty under federal law is, however, more limited. ⁵⁷

There is a need to discuss these issues in a way that challenges prejudicial assumptions and champions mutual understanding and respect. This could be achieved through a public education campaign about all-gender facilities and the need for changes. What Nicole Kalms and Laura McKey propose goes boldly further – a ‘radical redesign’ of public sanitary facilities, rethinking them as social and cultural spaces of care, comfort and refuge. ⁵⁸ This offers a new way of thinking about public toilets, especially in the context of the forthcoming National Construction Code reforms, and compels us to think about toilets as much more than spaces to pee – they are spaces where we compose ourselves, converse with one another or talk to ourselves, draw on walls, change nappies, feed babies, take drugs, and sometimes have sex. ⁵⁹ They are both public and private spaces that carry implications for the law and those who use them.