*  ©2018. Professor of Law, S.J. Quinney College of Law, University of Utah; B.A., 1971, Columbia College; B. Phil., 1973, University of Oxford; J.D., 1976, Yale University.

[1] Gloucester County School Bd. v. G.G. ex rel. Grimm, 822 F.3d 709, 734 (4th Cir. 2016).

[2] Suellen Hoy, CHASING DIRT 65 (Oxford Univ. Press 1995).

[3] There were rare exceptions to single -user privies. There is evidence that privies behind private homes may have been multi-user. Archeological investigation has revealed that some privies had multiple holes, generally of different sizes. It is clear that the purpose of this was to make the privy safe for small children. Some have suggested that family members might have used such privies at the same time. See Michael Olmert, Kitchens, Smokehouses, and Privies – Outbuildings and the Architecture of Daily Life in the Eighteenth Century Mid-Atlantic 141-43 (2009).

[4] See David E. Shi, FACING FACTS: REALISM IN AMERICAN THOUGHT AND CULTURE 1850–1920, at 17 (Oxford Univ. Press 1995) (describing the emerging faith “in the civilizing power of moral women” during the nineteenth century). “Females were widely assumed to be endowed with greater moral sensibility and religious inclinations than men.” Id.

[5] See, e.g., Carolyn Brucken, In the Public Eye: Women and the American Luxury Hotel, in 31 Winterthur Porfolio (1996) at 210: “As many prescriptive writers sought to craft a middle-class image of true womanhood as domestic, nurturing, and pure, the public spaces of the city were seen as potentially dangerous. . . . In the street, middle-class women left the protective shelter of the family and exposed themselves to the public gaze of strangers. While the modern city symbolized a new freedom of movement for men, for middle-class women it was a realm where they risked their virtue among mixed and unknown crowds.”

[6] Brucken, In the Public Eye at 207: “The Tremont House helped to establish “a formula . . . for the design, style and management of urban luxury hotels that was followed with little deviation up to the Civil War. Technological advancement in lighting, plumbing, and heating added to the comfort and novelty of the hotel; but the form and design of hotel spaces remained essentially the same throughout this period.” See also Molly W. Berger, Hotel Dreams – Luxury, Technology & Urban Ambition in America, 1829-1929 (2011) at 30.

[7] Brucken at 211-12.

[8] Id.

[9] Id. (“Public space for women was a place of performance as well as exposure. Women were central to middle-class public presentation, reputation, and status. Through management of the home and genteel settings, women were believed to refine middle-class men. . . . In creating refined female surroundings, the hotel similarly established its claims to respectability.”)

[10] In general, plumbing technology and public sewerage systems across the country would not advance to a stage to enable private homes and other most buildings to bring plumbing indoors until after mid-century. Suellen Hoy, Chasing Dirt, at 65.

[11] Berger, Hotel Dreams at 45.

[12] Id.

[13] See Molly Berger at 60:

[T]echnological systems became the hallmark of a modern hotel. . . . These included indoor plumbing, steam heat, electric call bell systems, and patent locks . . . . Most importantly, these buildings incorporated the idea of modern technology into their definition of luxury.

Elsewhere Berger notes:

“Isaiah Roberts incorporated the necessary elements of a first-class hotel and superimposed modern ideas of luxury upon them. . . . These expressions of technological luxury embodied ideas about material prosperity as a symbol of progress, the role of luxury as an engine driving capitalist enterprise, and the energy of the emerging industrial age.”

Id. at 57.

[14] See A.K. Sandoval-Strausz, Hotel – An American History 168 (2007) at 165.

[15] Id.

[16] Berger, Hotel Dreams, at 71-72.

[17] Id. at 73.

[18] St. Nicholas Hotel brochure of 1856.

[19] Berger, Hotel Dreams at 109.

[20] Id. at 103.

[21] Van Slyck, Abilgail, A. "The Lady and the Library Loafer: Gender and Public Space in Victorian America" Winterthur Portfolio 31, No. 4 (Winter, 1996): 221-242, at 236.

[22] My prior scholarship has focused on the history or these late century laws. See Terry S. Kogan, Public Restrooms and the Distorting of Transgender Identity, 95 N.C. L. REV. 1205 (2017); Terry S. Kogan, Sex Separation: The Cure-All for Victorian Social Anxiety, in TOILET: PUBLIC RESTROOMS AND THE POLITICS OF SHARING 146 (Harvey Molotch & Laura Norén, eds., 2010)(hereinafter “Toilet”); Terry S. Kogan, How Did Public Bathrooms Get to Be Separated by Sex in the First Place?, THE CONVERSATION (May 26, 2016); Terry S. Kogan, Sex-Separation in Public Restrooms: Law, Architecture, and Gender, 14 MICH. J. GENDER & L. 1, 27 (2007).

[23] Act of Mar. 24, 1887, ch. 103, § 2, 1887 Mass. Acts 668, 669 (“An Act to secure proper sanitary provisions in factories and workshops”).

[24] See Kogan Sex-Separation in Public Restrooms, at 12-15.

[25]John F. Kasson, Rudeness & Civility: Manners in Nineteenth Century Urban America 116 (1990).

[26] George M. Price, The Modern Factory: Safety, Sanitation and Welfare 275 (1914).