A gender neutral bathroom is seen at a coffee shop in Washington, DC, on May 5, 2016.
Courts leave bathroom rules in limbo as school starts
01:26 - Source: CNN

Editor’s Note: Michael J. Broyde is an ordained rabbi and a professor of law at Emory University School of Law, a fellow in the Center for the Study of Law and Religion and writes regularly on matters of interest to the general public from the Jewish tradition. The opinions expressed in this commentary are solely those of the author.

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Michael Broyde says the issue of transgender bathrooms should be addressed with private, unisex bathrooms for all

Broyde: Nothing is gained by public bathrooms. Humans are private, bathrooms are private spaces. Building codes should begin to require that privacy

CNN  — 

When it comes to transgender people’s rights, Americans have considered the countless difficulties – from religious to legal and beyond – and focused on a commonplace issue: Which bathroom should such individuals use?

The bathroom, and more specifically the public restroom, is where the rights of transgender people come into close proximity with the privacy rights of everyone. Indeed the U.S. Supreme Court agreed Friday to take up the issue in the case of a transgender high school student in Virginia who is seeking to use the boys’ bathroom at school.

Michael Broyde

What does all of this present? An opportunity to build a better society by building a better bathroom – one that moves away from the common view that bathroom privacy is about gender privacy and that communal bathrooms are OK if they are gender-separated.

In my religious tradition (Jewish) and the tradition of other faiths as well, there is a different approach to bathroom ethics: Bathroom time is private time and no one else, no matter what gender, should be with you in the bathroom, unless you need help.

Our society should build unisex, single-room mini-bathrooms for all, like the kind you find in an airplane. These bathrooms would address not only the issue of transgender bathroom usage, but also of privacy concerns generally.

Your house (and mine, too) has a unisex private bathroom, as do restaurants, shops, and many other establishments. The truth is that such bathrooms are more modest in every way than communal facilities, which at best are only semi-private and which many find uncomfortable and even immodest.

Nothing is ever gained by public bathrooms. Humans are private creatures and bathrooms are private spaces. Unisex bathrooms not only accommodate the needs of individuals with so many special needs, but they address the needs of those among us who are simply shy to use bathroom facilities when others are present.

This is so important in a good society: Independent of the transgender issues, communal bathroom layouts have long marginalized the privacy needs of children and adults who need assistance, including those with disabilities.

Of course, this is a vital concern to all who think that the needs of the weak or disabled are the deep moral imperative. Unisex mini-bathrooms would protect the dignity of these individuals. They and their caregivers (especially of the opposite sex) would be freed from the critical comments they might encounter when using gendered public facilities.

Conversely, those patrons who are uncomfortable with the presence of an opposite-sex person in a bathroom, regardless of age or disability, would be accommodated.

If we all adopt this plan, the bathroom areas of public places would resemble the bathrooms we are all used to in our homes: They will be a room suitable for either gender, with a toilet. Everyone has their own private space. If showers are provided, each shower would be completely self-contained. Communal showers would (and should) disappear – they are a gross intrusion on privacy, as everyone knows.

No question, retrofitting millions of public bathrooms across the country to make them private may seem like too monumental a thing to ask or expect. But there are many bathroom adjustments smaller businesses could make quickly to address a social need without creating a prohibitive expense.

Not surprisingly, many businesses have already instituted these unisex mini-bathrooms, since they are efficient and employees value their bathroom privacy

Beyond that, the change to unisex bathrooms could be incorporated into building codes, and as with all changes to building code – such as requirements to provide access for people with disabilities – government agencies routinely do not mandate that every structure be brought up to code immediately. Rather, all new buildings could be expected to comply at the time of construction, and all existing buildings could be brought up to code at the time of renovation.

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    It would move us in the right direction.

    Fighting over who uses which genders’ bathroom, or over the “true gender” of transitioning individuals, misses a wonderful occasion to build a better culture for us all. For the purpose of bathroom access, it ought to be irrelevant to debate the status of transgender people, or what a person’s supposedly “true” gender really is under American law.

    In fact, it is even irrelevant, whether the issue is of transgender, disability and caregiver access, or simply a situation in which an opposite-sex parent is helping a child new to the bathroom. We need a solution that protects the dignity and privacy of every person in a bathroom.

    Let’s build a better bathroom.