Throughout American history, different types of codes have required the sex-separation of public restrooms. During the nineteenth century, an unwritten architectural code required that exclusive spaces for women be cordoned off in public buildings. Beginning in the late 1880’s, state legislatures enacted the first statutes requiring sex-separated toilets in factories. Finally, early in the twentieth century private industry groups promulgated Model Building Codes that extended this long-standing practice to virtually every public building in the United States.
Sex-Separated Public Restrooms and their Regulation throughout American History
This paper explores the historical and the regulatory origins of the architectural practice of sex-separating restrooms in America.
First, it explores the historical origins of this practice. As demonstrated below, sex-separated restrooms first appeared in the 1850s in luxury hotels, then the most prominent buildings in American cities. The practice soon spread to department stores, libraries, photography studios, among other venues. Showing that the practice of sex-separating restrooms has a specific history is important to counter an assumption held by many that these spaces have always been sex-separated based on anatomical differences between men and women. Typical is the statement of a federal appellate court judge dissenting in a case involving a transgender boy who was denied the right to use communal boys’ restrooms at his high school:
“Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females.”1
It is a fundamental goal of the Stalled! Project to counter this assumption by demonstrating that there is nothing automatic or “natural” about configuring public restrooms in this way. Rather, there are alternative ways to design such facilities that do not wreak havoc on the lives of transgender people, persons with disabilities, the aged and others considered to have “non-compliant” bodies.
Second, and perhaps more importantly, this paper explores the regulatory origins of the practice of sex-separating restrooms. This practice did not begin because some mid-nineteenth century architect decided it would be a clever way to design a building. Rather, throughout American history, different types of codes have required that public space be configured in this way. Through much of the nineteenth century, a tacit unwritten code governed architectural practice, a code requiring that exclusive spaces for women be cordoned off from spaces intended for men in public buildings. Beginning in the late 1880’s, state legislatures enacted the first formal statutes requiring that public restrooms be sex-separated, laws that applied to factories and other workplaces. Finally, beginning in the first quarter of the twentieth century, private construction industry groups began promulgating model building codes intended for adoption by states and municipalities. The first such building codes carried forward the nineteenth century practice of requiring that public restrooms be sex-separated.
Despite the different pedigrees of these codes, they all share one critical feature: Building codes, whether informal or formal, inevitably embody social, political, and moral values of the society in which they arise. As demonstrated below, the roots of the practice in America of sex-separating restrooms can be traced directly to an early nineteenth century cultural vision that then pervaded American society, the so-called “separate spheres ideology.” That vision viewed women as morally superior but vulnerable beings whose appropriate place was in the domestic home caring for their families. In contrast, the ideology considered the proper realm for men to be the public sphere — engaging in politics and economically productive activity. Though emanating from an historically contingent sexist vision related to the inherent weakness of women, this vision has in fact been perpetuated across American history into a commonly held belief that public restrooms must be separated by sex to protect vulnerable women who venture into public space.
I. THE NINETEENTH CENTURY
Until roughly 1850, there were no indoor toilet facilities in America. Everyone, rich and poor alike, used outdoor privies to meet basic human needs.2 And these privies were all single-user and were not sex-designated.3 The romantic myth of two adjacent outhouses behind rural homes — one for women with a moon cut in the door, the other for men with a sun cut in the door — is simply that . . . a myth. There is no reliable evidence that early American outdoor privies were sex-separated.
The practice of separating public restrooms by sex did not begin in America until the mid-nineteenth century. The origins of this practice can be traced directly to a sexist cultural vision that developed at the beginning of the century. As a result of the industrial revolution, the home ceased to be the central economic unit in America. Men left for new public workplaces where manufacturing was centralized, while women stayed behind. A cultural division between public space and private space emerged during the course of the century that has become known as the “separate spheres ideology.” The public realm was considered the domain of men, the home that of women.
A tacit, unwritten architectural code emanated from this ideology that guided architects in designing public buildings. Emphasizing the moral superiority women but recognizing their vulnerability,4 that code was understood to require a strict separation between domestic space and public space. Public buildings were primarily for use by men. Women’s presence in public structures was temporary at most, on the rare occasions that they ventured forth from the protection of their domestic havens.
In fact, this sentimental vision of the virtuous woman ensconced in her domestic sphere was a myth, bearing little resemblance to women’s daily experiences or the evolving social realities of the nineteenth century. From early in the century women left their homes both to enter the workplace and to participate in civic life. Equally important, by the mid-nineteenth century women had become active consumers helping to fuel the burgeoning nineteenth century economy. Nonetheless, the separate spheres ideology maintained a tenacious hold over the American imagination throughout the entire nineteenth century. The public realm was considered particularly dangerous for vulnerable women, and as a result, anxiety accompanied each instance in which a woman ventured into urban streets.5
Tremont House Hotel, Boston, Isaiah Rogers, Architect - 1829
A single building — Boston’s Tremont House Hotel designed by architect Isaiah Rogers in 1829 — transformed the tacit code that governed early nineteenth century architectural practice. Scholars agree that the design of this building exerted great influence over public architecture in America for much of the nineteenth century.6 Rogers was tasked by the hotel’s investors to design a structure that could serve as the Boston’s social, commercial, and political center. The hotel needed to be inviting and accommodating not only to men, but also to the growing number of women who began frequenting public spaces. To accomplish this challenge, Rogers designed the first major building in America that designated spaces by gender. The hotel contained a “ladies’ receiving room,” a “ladies’ drawing room,” a “ladies’ dining room,” a “gentlemen’s receiving room,” a “gentlemen’s drawing room,” a “gentlemen’s reading room,” and a “public dining room,” understood to be used by men. The hotel also provided a family entrance from a side street away from the main entrance as well as “private parlours” and “chambers,” intended for families.
Tremont House Hotel - Floor Plan - Main Floor, William Havard Eliot, A Description of Tremont House (1830)
By designating spaces by gender, Rogers effectively transformed the tacit architectural code that separated the private domestic sphere from the public sphere into a new tacit code in which the separation between gendered spaces could now occur entirely within the public sphere. The designation of gendered spaces within the hotel clearly evidenced Roger’s tipping the hat to the separate spheres ideology. Though in the public realm, the dining and parlor spaces designated for women and families served as a kind of surrogate for the home. The placement of these spaces within the hotel assured that women and children would have reduced contact with strangers, as well as with the male-dominated activities that took place within the male designated spaces.7 At the same time, the configuration of the hotel space blatantly defied the separate spheres ideology by openly acknowledging that women were becoming active participants in the public realm.8 In creating refined female surroundings, the hotel established its claims to respectability, thereby supporting the investors’ economic goal of welcoming rich consumers — men and women — into the hotel.9
A second feature of the hotel is critically important to understanding the history of sex separated restrooms in America. The Tremont House was the first major building in America to bring plumbing indoors,10 the hotel’s most notable innovation.11 Among other plumbing amenities, Rogers designed eight single-user privies, “the greatest luxury of all,”12 along a back corridor on the main floor. However, unlike the receiving rooms, drawing rooms, dining rooms, etc., the privies were not sex-designated. The importance of this fact cannot be overstated. In the first building that consciously translated and transformed the separate spheres ideology into an architectural plan, there was no automatic association in the architect’s mind between the perceived need for separate women’s spaces, on the one hand, and any need to sex-designate the eight water closets, on the other. Despite the assertion of contemporary opponents of transgender rights that separating restrooms by sex is the “natural” way to configure public space, Isaiah Rogers did not see things that way.
Reflection on the history of outdoor privies — the only type of public toilets available prior to Rogers’ bringing water closets indoors — helps to explain why, in all likelihood, he felt no need to designate these spaces by sex. In a world of single-user privies, concerns of women’s modesty did not arise, in part because of the general expectation that women rarely graced the public realm and in part because any person using a single-user privy would be protected behind the closed door.
Why then did Rogers bother creating a bank of eight indoor water closets in the Tremont House? He brought plumbing indoors and created the bank of water-closets to emphasize the innovative status of the Tremont Hotel and to create “a new definition of luxury that included technical systems [that] reinforced the idea of luxury as progress. . . . [T]echnology represented the innovative character of its investors.”13 The water closets were intended to heighten the convenience of the hotel for its patrons — men and women alike. That goal was accomplished without any need to designate the restrooms by sex.
Which brings us full circle to the sex-separation of public restrooms. If the building that most influenced the gendered nature of public space during the first half of the nineteenth century did not designate water closets by sex, how did this practice begin? It is important to put this question into context. Until the 1850s, during the day guests at virtually every hotel in America used outdoor privies. At night, they made use of bowls and pitchers for in-room ablutions and chamber pots for relief.14 The march to sex-separated restrooms in American luxury hotels was plodding. At most a few indoor water closets could be found in luxury hotels beginning in the 1830s.15 Advances in technology enabled Rogers to put water closets and bathing rooms on each floor of guest rooms in the 1836 Astor House Hotel in New York City, but there is no indication that they were sex-designated.16 In 1853, the St. Nicholas Hotel opened in New York City, the first hotel to cost over a million dollars.17 Though the St. Nicholas provided a “range of water closets” on the main floor,18 again there is no indication that these were sex-designated.
CONTINENTAL HOTEL - PHILADELPHIA, JOHN MACARTHUR, ARCHITECT
The 1860 Continental Hotel in Philadelphia appears to be the first luxury hotel that designated water closets by sex. Along the first-floor corridor where the male-only spaces were located — saloon, gentlemen’s café, business exchange, and billiard room — a “men’s washroom” which contained twenty-two water closets and eight urinals was built. In effect, this enclosed space was one of the earliest “Men's Rooms” in America. There were no women’s facilities on the first floor.19 Each of the second, third, and fourth floors of the hotel, which contained private bedrooms and suites, contained water closet facilities located in the hallway, two of which were designated for women, one for men.20
What explains the appearance of sex-designated restrooms in luxury hotels at some point after 1850? Roger’s Tremont House Hotel had transformed the tacit architectural code that governed American building design from one that required a strict gendered separation between the domestic and public spheres to one that allowed gender separation to occur entirely within a public building. In terms or the future of sex separate restrooms, it was ultimately irrelevant that Rogers personally perceived no need to gender the hotel’s bank of single-user water closets. Over time, architects and building designers determined that, like other gendered parlor spaces, public restrooms also should be separated by sex.
In all likelihood this occurred for two reasons. First, so long as indoor water closets were a novelty meant to show off the investors’ technological prowess, no serious consideration was given to gendering these spaces. But as technology advanced, and more and more public buildings brought plumbing indoors, closer consideration had to be given to their configuration in the overall design of a public building. Moreover, as women became a more prominent presence in the public realm by mid-century, architects were confronted with an increased demand on toilet facilities. The combination of improved technology coupled with the increased presence of women in public buildings in all likelihood led to the realization that restrooms should be sex separated just like other parlor spaces.
The first sex-separated restrooms in public buildings took on one of two configurations. In some instances, as in Philadelphia’s Continental Hotel, they were placed along a public corridor and sex-designated. Another example of a building that separated men’s and women’s restrooms along a public corridor is a turn of the century mercantile establishment designed by the architecture firm of Carrère & Hastings (which also designed the New York Public Library):
NOS. 66, 64, 62 & 60 CROSBY STREET, NEW YORK CITY, CARRERE & HASTINGS, ARCHITECT - CIRCA 1900
In other instances, the water closet was placed in a parlor space already gendered, and accordingly needed no special designation. For example, in an 1877 design for a public library in Woburn, Massachusetts, architects Cummings and Sears added two water closets to the “Women’s Reading Room”:
WATER CLOSETS, WOMEN'S READING ROOM, PUBLIC LIBRARY, WOBURN, MA 187721
By the last quarter of the nineteenth century, a new tacit architectural code that guided architects in designing indoor plumbing spaces was well-established in America. In larger public venues including hotels, department stores, libraries, and railway stations, public restrooms were to be separated by sex. And there is little doubt that this tacit code was firmly rooted in the early nineteenth century separate spheres ideology.
II. LATE NINETEENTH CENTURY FACTORY TOILET LAWS
Given this well-established tacit practice, why did state legislatures in the late 1880s bother enacting toilet laws explicitly mandating that factory toilets be separated by sex?22 Some background. The first factory toilet law was enacted by Massachusetts in 1887:
In every industrial establishment and railroad establishment there shall be provided suitable, adequate and convenient water closets and washing facilities, separate for each sex and plainly so designated, . . . No person shall be allowed to use a closet or privy provided for the use of persons of the opposite sex.23
By 1920, forty-three states adopted similar legislation.
These laws were adopted as extensions to protective labor legislation aimed at women and children that states began enacting in the 1850s. This legislation limited the hours that women were allowed to work; restricted or prohibited night work by women; mandated that women be given relief time for meals; mandated a rest period for women during the working day; and prohibited the employment of women immediately before or after childbirth, among other regulation.24
Any suggestion that the late century factory toilet laws were adopted for gender neutral reasons is belied by both the titles and texts of these statutes. For example, the 1891 Ohio factory restroom law was titled, “An act for the preservation of the health of female employes [sic].” The 1893 Pennsylvania toilet law required that “[a] suitable and proper wash and dressing room and water closets shall be provided for females, where employed . . . .”
Why did policymakers perceive a need in the late nineteenth century to invoke the strong arm of the law to enforce a design practice that was already widely accepted by American architects? The answer turns on growing social anxieties over changing urban conditions, including concerns over the fast growth of technology, concerns over public health and sanitation, and Victorian concerns over privacy and modesty.
The late nineteenth century was characterized by an extraordinary growth of technology and industrialization, most notably in transportation and manufacturing. As a result, individuals perceived their daily lives as invaded and threatened by ever increasing noise and danger.
Social anxiety also grew as a result of the devastating cholera epidemic that cost thousands of lives during the Civil War. A new Sanitarian movement developed in the 1870s that focused, for the first time, on the horrific sanitary conditions in American cities. This period was marked by the rise of public works projects that brought municipal sewer systems to major cities, a development that would eventually lead to the prohibition of outdoor privies in many communities across the country.
Finally, personal privacy became an obsession in late Victorian society. “The right of individual privacy, under new pressures in the brashly inquisitive metropolis and subject to the development of new technologies of intrusion and publicity, was elevated to sacred status, which everyone was bound to respect.”25 This interest in privacy was heightened with respect to issues surrounding bodily functions, and concerns over such functions became deeply intertwined with social morality.
Each of these concerns was heightened in factories, where men and women worked side by side in filthy conditions operating extremely dangerous machinery. The confluence of these concerns led regulators to develop an urgent sense that social custom was no longer adequate to protect working women and children. The time had come for formal statutory law to step in. A review of factory inspectors reports at the turn of the century makes clear that these concerns coalesced around the factory toilet. For example, in 1914 a New York state investigator looking into factory sanitation noted:
No part of an industrial establishment is so neglected as the toilet accommodations. In many cases they are located outside of the factory, and sometimes quite a distance from it, causing the loss of much time and also endangering the health of the employes [sic]. In the investigation made for the New York State Factory Commission, the toilets were located in yards in 186 of the establishments inspected. . . . Many of the toilets were not separated for the sexes and were of an obsolete and crude type.26
Like the late century tacit codes that governed the design of sex-separated toilets in public buildings, factory toilet statutes were also firmly rooted in the early nineteenth century separate spheres ideology. It was in the spirit of manipulating public space to protect weak and vulnerable women that state legislators enacted these laws. In a 1903 Department of Labor in which he bemoaned the poor sanitary conditions in American factories, the inspector noted:
Women suffer even more than men from the stress of such circumstances, and more readily degenerate. A women’s body is unable to withstand strains, fatigues and privations as well as a man’s.27
By enacting statutes mandating sex-separated toilet facilities for women workers in factories, policymakers sought to reconcile the early century pedestaled vision of women with the realities of late century life. Adopted as extensions to protective labor legislation, laws creating separate facilities for women in the workplace were a manipulation of architectural space aimed at creating a surrogate home, a protective haven for women in the public realm. Ultimately, laws mandating sex-separation of public restrooms were a last-ditch attempt by late century state legislators to bolster the crumbling separate spheres ideology.
III. THE TWENTIETH CENTURY AND MODEL BUILDING CODES
The ragtag of late nineteenth century factory toilet laws cannot begin to account for the omnipresence of sex-separated public restrooms in contemporary society. What explains the proliferation of sex-separated restrooms to virtually every public building in modern America?
The answer is the Model Building Code. Some background:
Building codes setting forth construction standards have been with us for millennia. The first is often attributed to Hammurabi, whose B.C. 1780 code stated: “If a builder builds a house for someone, and does not construct it properly, and the house which he built falls and kill its owner, then the builder shall be put to death.” Before the twentieth century, construction in the U.S. was governed by a quagmire of inconsistent local building codes. There were early twentieth century attempts to address this chaos through a national solution when the National Board of Fire Underwriters, an insurance industry group, drafted the 1905 National Building Code, a code directed primarily to fire safety.
Early in the teens, however, anti-federalist sentiment fueled a move to shift the regulation of building construction and land use to the States pursuant to their police power to protect health, safety, and¬ welfare. Early zoning codes were among the first such regulations. At the same time, building officials and construction industry representatives organized three regional groups to address common problems related to construction.
- Building Officials Conference of America - Organized in 1915 by eastern regional building groups; Published BOCA National Building Code in 1950
- Pacific Coast Building Officials Conference (became International Conference of Building Officials) - Organized in 1922 by pacific regional building groups; Published - Uniform Building Code in 1927
- Southern Building Code Congress International - Organized in 1940 by southern regional building groups; Published Standard Building Code in 1945
Each group ultimately published a model building code that set uniform minimum standards for fire, health, and safety in building construction. When adopted by a state or municipal authority, these model codes became governing law for that jurisdiction. From the viewpoint of local authorities, adopting a model code obviated the need to undertake technical research or to hire experts necessary to develop their own building codes. Moreover, adopting model codes assured consistent standards across a region — a boon to the construction industry. Over time, roughly 97 percent of all U.S. cities and towns adopted one of these three model codes.
Let’s focus on the first such code promulgated in the U.S., the 1927 Uniform Building Code. Section 102 sets forth the purpose of that code as follows:
“The purpose of this Code is to provide certain minimum standards, provisions and requirements for safe and stable design, methods of construction and uses of materials in buildings and/or structures hereafter erected . . . and to regulated the equipment, maintenance, use and occupancy of all buildings and/or structures.”
So . . . what does all of this have to do with sex-separated restrooms? In the midst of this highly technical code, Chapter 13 related to “Requirements for Group H Buildings (hotels, apartment houses, dormitories, lodging houses, convents, monasteries and old people’s homes)” set forth the following requirement mandating the separation of toilet facilities by sex:
§1305 - Every building shall be provided with at least one toilet. Every building and each subdivision thereof where both sexes are accommodated shall be provided with at least two toilets located in such building and one toilet shall be conspicuously marked “For Women” and the other conspicuously marked “For Men.” . . . .
The 1927 Uniform Building Code was updated every three years. The requirement that restrooms be sex-separated has remained in every subsequent edition of this Code since the first. In fact, this requirement been expanded over the years to apply to other types of occupancies, first office buildings, then restaurants, auditoriums, educational buildings, and eventually to virtually every type of public building. In the late 1990s, the three regional organizations combined to form the International Code Council, which now publishes model codes related to building, fire, plumbing, mechanical, energy conservation, zoning, among other construction-related topics. The International Building Code (§2902.2, 2015 edition) and the International Plumbing Code (§403.2, 2015 edition) both require the following:
“Separate Facilities - Where plumbing fixtures are required, separate facilities shall be provided for each sex.
What is a requirement that public restrooms be sex-separated doing in highly technical codes directed to health and safety issues in building construction? Because they are promulgated pursuant to the States’ police power, building codes tend to be set forth in the guise of neutral health and safety standards. Nonetheless, such codes inevitably embody a society’s moral, political, and social values. There is no better example than the Southern Standard Building Code, published by the Southern Building Code Congress International beginning in 1945. For several decades § 2002.1 of that Code dealing with “Toilet Facilities” required separate toilet facilities for blacks and whites:
§2002.1 Toilet Facilities “. . . . The number [of toilet facilities] provided for each sex shall be based on the maximum number of persons of that sex that may be expected to use such building at any one time. Where negroes and whites are accommodated there shall be separate toilet facilities provided for the former, marked plainly “For Negroes Only.”
With respect to sex-separate toilets, the Uniform Building Code clearly embodied the tacit standard that public restrooms should be separated by sex, a standard that has characterized architectural practice since the 1850s. Over time, tacit standards have a way of becoming an unquestioned part of building design practice. Once a practice gets embodied in the built environment, that practices take on an air of the inevitable, of the “natural” way to configure architectural space.
Yet model building codes have another characteristic that tends to cement in place certain architectural practices. As mentioned above, these building codes are promulgated by private industry groups and amended on a regular three-year cycle. But given the arduous amendment process which involves a proposals being subject to a series of public hearings as well as written public comment, unless an industry group has an economic interest in changing a particular standard, a code provision has a tendency to persist over time through sheer inertia. This explains in part the persistence of the sex-separate toilet provision over innumerable iterations of the Uniform Building Code.
Let’s recap. Based separate spheres ideology which viewed women as vulnerable and in need of special protection in the public realm, early nineteenth century architects began designing public buildings with gender-separated spaces. Over time, as plumbing technology developed and as women’s presence in urban America increased, building designers determined that, like other gender designated spaces, public restrooms also needed to be separated by sex. As a result of a confluence of anxieties over factory conditions in the late century, legislators transformed this tacit practice into formal statutory codes with respect to workspace toilets. In the early twentieth century, the adoption by states and municipalities of Model Building Codes promulgated by private industry groups had the effect to extending the then long-standing practice of sex separated restrooms to virtually every public building in the United States. This practice, which has now come to seem natural and inevitable in the minds of most people, continues to define the configuration of new architectural structures to the present day.
AMENDING THE CODE
The International Plumbing Code (“IPC”), which governs construction in a vast majority of American cities, requires: “Separate Facilities - Where plumbing fixtures are required, separate facilities shall be provided for each sex.” It is the fundamental goal of Stalled!’s legal team to lobby the International Code Council, the private industry group responsible for promulgating the IPC, to amend this provision to allow for all-gender, multiuser public restrooms that are accessible to all and discriminate against no one.
TYPOLOGY AND ERGONOMICS
Rather than blindly accept design guidelines as objective functional requirements, designers need to call into question the architectural typologies and ergonomic standards that govern architectural practice. They are contingent social contracts that transmit dominant and often problematic conceptions about what society considers “normal” and “deviant” bodies.