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In forma (toilet) pauperis

By Basil

Of all the issues surrounding the future home of the Washington Nationals, none is so, uh, urgent as the need for "potty parity." That's why it's great to have John Banzhaf, professor at The George Washington University's school of law, on the scene. You see, among (many) other titles, Banzhaf is by acclamation the "Father of Potty Parity" (or, as he also calls it, "Squatters' Rights"). The professor is nothing if not vigilant on the subject.

I'm not the first Natty blogger to explore this topic today, not by a long shot. Capitol Punishment and Nats TP (eh, pun intended, I suppose) have also analyzed the topic.  The former suspects Banzhaf is a "rabble-rouser"; the latter might give Banzhaf a slight benefit of the doubt and just regard him as an advocate who seeks to draw attention to a lesser-exposed area of litigation (though the Sarcasm Meter is on stand-by).

Well, I've got some lunchtime to kill, and I might as well look at the issue now, since I assure you I'll never have any desire to do so again---and hopefully not the opportunity, either, to be honest.

Lest I mischaracterize Banzhaf's potty niche (among other niches), I point you to his online mini-treatise on the subject. Potty parity litigation is, to use something less than a term of art, a "burgeoning field":

Two recent federal appellate court decisions and several other authorities now suggest that places of public accommodation which routinely and repeatedly force women to wait far longer than men in public places to perform the same basic function may be violating the law, and the first federal "potty parity" complaint has now been filed to test that novel legal theory.  If this or subsequent complaints are sustained, it could establish a new legal right, and provide women with an important new weapon for equality in this often-overlooked and frequently-ridiculed area.

This paragraph essentially means the legal theory has found a bit of a crack in the jurisprudential front door. Judging by only the citations and summaries Banzhaf's website provides, it appears that "potty parity" has gained some headway as a cause of action for employees in Title VII disparate impact claims. Which brings me to two points:

  1. So-called "potty parity" really is an attempt at "adjusted parity," in a manner of speaking; and,
  2. It's a bit of a stretch, I'd surmise, to lift "potty parity" from a workplace environment and apply it as a broader right affored by the federal Constitution or other federal statutory law.
Regarding the first point, the parity is not at all in terms of "facility" as it is in "opportunity time":
Potty Parity -- also known as Restroom Equity or Squatters' Rights -- is a growing movement to eliminate the huge disparity between the time men and women wait to use restroom facilities in public places.  Since I wrote the seminal article on the topic, the movement has made great strides, with several states and plumbing codes now requiring a 1-2 ratio between male restroom facilities (urinals plus toilets) and female restroom facilities (toilets).

For reasons cited by Banhzaf, this makes practical sense, but that's . . . beyond the scope of this blog, to say the least. The Washington Times article linked above does not mention whether the District of Columbia has such a code (it says "about a dozen jurisdictions" do, and I'm betting no federal statute so provides at present), but I'm sure as sin not looking it up. At any rate, what facilities will the new park provide? That seems to be unclear, although based on what Banzhaf's read, he might be raring to file a complaint:

He said the stadium's preliminary blueprints tout one toilet for every 75 women, and one toilet for every 350 men and one urinal for every 100 men, according to a Washington City Paper report quoting ballpark architect Joseph Spear.

A DC-SEC spokesman said even his agency doesn't yet know how many bathrooms will be provided. We shall see, I suppose.

Banzhaf appears to have rather substantially broad designs for "potty parity" law. He considers it a viable issue under the Equal Protection Clause of the Fourteenth Amendment. He seems to intimate that the days of separating restrooms by gender should be in the beknighted past:

Perhaps another way of framing the argument is to note that the doctrine of "separate but equal" was long used to justify having separate restrooms (as well as schools and other establishments) based upon race.  The argument was that the Equal Protection clause mandate of equality of treatment did not necessarily require that different groups be admitted to the same facilities, but only that the facilities be substantially equal for each group.  Although we no longer permit separate restrooms based upon race, we do have separate restrooms based upon gender (because of the importance of privacy).

He stops short of calling for integrated restrooms---although, strangely, he views this option solely from a female perspective:

It might be reasonable to expect that a rest room open to both genders -- especially during periods of high demand such as an intermission -- might be a reasonable way of eliminating disproportionately long lines waiting the use the women's room. This is especially true since many of the objections women might have to sharing a rest room with men are not related to viewing the backs of men standing before urinals, but rather relates to their legitimate fear of rape, assault, or even verbal harassment if a woman is alone in a rest room with one man.

Like I said, Banzhaf stops short of out-and-out advocating this position, but he does seem to support administrating restroom facilities as if (in my mind, at least) they were north- and south-bound toll lanes, which are separated by cones to varying degrees of access each way based on traffic volume.

Well, I don't know; the concept is still pretty new to me.

Banzhaf's site mentions that he filed a federal complaint in 2002 concerning restroom facilities at a University of Michigan performance hall. It didn't seem to be limited to employee access, so it seems a bit more analogous to this DC ballpark restroom issue he's trying to spur. I don't know what became of that litigation, and I'm not going to check right now. Maybe it was thrown out for failure to state a claim under Fed. R. Civ. P. 12(b), or maybe it's still kicking.

Regardless, there are other matters to occupy our time and our reading---wherever that reading may be done, of course.

 

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