How Passive Discrimination is Embedded in Our Building Code
An All-Gender Restroom Sign
The below is an expanded version of a speech which was originally delivered at Reset 2021.
My name is Rhen Soggee, I use they/them pronouns.
Yes, I’m non-binary. I might not look it, I’m femme passing. I WAS assigned female at birth, but I don’t identify that way. Internally, I identify as non-binary. But because my body shape dictates that my gender presentation is often read as femme, I struggle to be read as having no gender or a gender presentation that isn’t strictly femme.
Why is that important? Well.
Today we are going to be talking about bathrooms.
And, I’ve got a question for you all.
What do you do when you go to the bathroom?
Just. Sit with that for a second.
I, tend to go into the bathroom. Enter a stall. Do my business, as we all do and then wash my hands and get on with my day. Relieved.
For trans and gender diverse people, it’s not always that simple.
I’m really lucky. As a femme-passing non-binary person, I can generally access public bathrooms without hassles. But for a lot of my trans and gender diverse friends, family, colleagues, audiences, service staff and other community members, they aren’t so lucky and are not afforded the same experience.
For them, going to the bathroom can be quite a traumatic experience.
Often they’ll go into the bathroom and the bathrooms are split into very clear genders.
Male and Female.
I’m going to say that again.
Male and Female.
To be clear, today we are talking about trans and gender diverse people. We’re talking about people whose gender identity doesn’t correlate to the sex that they were assigned at birth. Gender identity is the personal sense of one's own gender. Gender expression typically reflects a person's gender identity, but this is not always the case. Some people don’t identify with any gender. There is a grand spectrum of how people identify and present.
But bathrooms? They’re segregated into:
Male and Female.
If our trans and gender diverse friends, family, colleagues, audiences service staff and other community members are in that bathroom, and someone else is in that bathroom who feels that their gender doesn’t align with those two genders, they often are on the receiving end of experiencing emotional, verbal or physical abuse and harassment - or any combination of those things.
Sometimes that comes from the general public challenging why they are in that space.
Sometimes from venue staff or security staff that don’t have an understanding of what it is to be trans and gender diverse and how that affects people’s use of public spaces and in this instance it often means physical and rough removal from a space, with no benefit of the doubt or clarification of why they’re there. They’re seen as the threat. It’s not a comfortable experience for anyone.
Because of this, I know many of my friends have to have set coping mechanisms in place to deal with the discrimination they face when using public bathrooms - which, as public spaces are meant to be free from discrimination.
Many trans and gender diverse folks will avoid using a public bathroom at all, and particularly if there are big crowds or queues. This limits the amount of time they’re able to spend out of their home or other safe spaces.
They’ll also track the locations of places with gender-neutral facilities available, constantly holding an internal foldable map, and only visit those places.
Another method is to attend bathrooms in pairs with an ally - whether they’re gender diverse or cis - they find conversing with each other or maintaining ‘banter’ throughout, to reduce the risk of interruption.
Often, people who are trans and gender diverse will use the Access bathroom, as that is the only one assigned gender-neutral or is the only single contained cubicle, sink and all, they can safely enter without others around.
This poses a big question for those people, who don’t have access intersections, about whether they’re taking up space that isn’t necessarily for them, whilst seeking safety. They worry that they are imposing on the people who have access requirements who need that space, that dedicated and tailored space, that those bathrooms were originally intended for.
Given that everyone, you and I included, will need to pee 5-7 times a day, that’s a lot of mental pre-planning that trans* and gender diverse folks have to do.
Ultimately, it means that a lot of the time trans* and gender diverse people will avoid going out to public spaces and using public bathrooms, or stop going out at all.
Not only is this exclusionary, but it also poses health risks for trans* and gender diverse folks. Many of us would have experienced how painful UTIs can be - but imagine how damaging that can be to your mental and physical health if your lack of safe access to public bathrooms meant frequent balancing acts of suffering.
So, the question I have for you now, IS, how do we make OUR arts spaces more inclusive for our trans* and gender diverse colleagues, audiences and friends so that they can be safe in our venues?
Well, I’m going to highlight for you that, BUILDING CODE, is a large part of the problem.
Building code dictates how we build bathrooms and how things are designated.
This document is THE document they use to determine required #s of bathrooms, urinals and hand basins for restaurants, cafes, bars, public halls, and function rooms and it is absolutely binary gendered.
That building code feeds into a lot of legislation that surrounds it. And that includes, for example, things like Liquor licensing.
With liquor licensing, you are required to have so many stalls, so many urinals per number of people in attendance for each application, and you can’t ACTUALLY obtain the licenses for your events without them, and this can be very inhibitive.
This is called passive discrimination. This is where discrimination is not direct and active, such as the direct discrimination we’ve seen in the USA with legislation around trans* and gender diverse folks use of bathrooms, rather that there are no specific things addressing the issue, and subsequently there’s nothing in place to protect trans* and gender diverse folks when they find themself in this situation.
This passive discrimination means that BUILDING CODE is outdated.
It’s so outdated, that it started in the 1800s.
Contrary to popular belief, Thomas Crapper didn’t invent the flushing toilet - George Jennings did. The phrase ‘spend a penny’ literally came from the penny used to pay for the use of the toilet, a towel, a comb and a shoeshine at the 1856 Great Exhibition of Hyde Park at Crystal Palace.
Anecdotes aside, whilst there was an option for women at the Great Exhibition, which had the lockable stalls as we know them today, public ‘conveniences’ as they were called, were only implemented for men for quite a long time, as evidenced by the enduring men’s bathrooms at Crystal Palace but not for women.
This is because women were only expected to leave the home for very brief periods of time, and therefore didn’t need to be catered for.
This was called the ‘urinary leash’.
The urinary leash.
How archaic is that?
To stop behaviour by women that was considered improper.
A urinary leash...
Sure, there was some concern for women’s safety that motivated this, but for the most part it was about controlling women’s activity, keeping them in the home, ‘safe’, as much as any other property.
There were some women who challenged the system. There were women who would drink less water, at the risk of passing out in public, to leave the house. There were women who would hold it in and risk those UTIs. Hell, there were women who would use bottles or devices to collect their pee, or use their long skirts to hide urinating over grates in the gutter.
How ‘proper’ is that?
Outside of the personal sphere, infrastructure was designed without women in mind and was hard to adapt, even when there began being the tinkling of change.
It wasn’t until the rise of the suffragettes in the late 1800s that we started to see change. Followed, quite quickly by the increase in capital that was discovered as department stores became popular and having public facilities allowed women to stay. To browse. To buy.
In the 150 years or more since, the history of segregation of bathrooms has gone through many iterations, from the availability of bathrooms to women, social class segregation, race segregation and accessibility, which finally brings up to the issue at hand, segregation around gender identity.
So, what’s the problem now? What’s ‘proper’?
Often, the argument that comes up in opposition is that it’s not safe for the ‘normal’ occupants of the bathrooms to be ‘exposed’ to trans* and gender diverse people. But if you look closely at the statistics, there’s nothing to substantiate that claim. In fact, I’d argue that reported statistics of violence towards trans* and gender diverse people when they leave the house, let alone try to access bathrooms, is much more stark and morbid - and often end in violence and death.
How ‘proper’ is that?
Despite massive shifts in legislation in the last 200 years, which have often been encouraged through Equal Opportunity and/or Anti Discrimination legislation, the code is still outdated.
Under the Sex Discrimination Act of 2013 in Australia, it is unlawful to discriminate against someone because of their gender identity, and this includes accessing bathrooms. It plainly states that “requiring a person who is transgender to use a toilet that does not align with their gender identity is discrimination”.
Despite this, the Building Code of Australia only uses the terms male and female patrons or spectators for gender identity. The only place where unisex bathrooms are mentioned is in employment premises where the staff is less than 10 people or in regards to accessible bathrooms.
SO the final question I’ll pose today, IS, what’s next?
What we can do, therefore, IS, to:
Write to our ministers
Write to the South Australian Law Reform Institutes (or equivalent in your state/country)
Write to our the building code operators, CBS (or equivalent in your state/country)
And we can talk to them about what the problems, how they affect trans* and gender diverse people and how it’s creating unsafe spaces for our clientele. We can tell them about the invisible urinary leash that they’re placing on their constituents. We can identify this passively discriminatory legislation and ask them to change it.
If you’re feeling even more adventurous you could speak to the Equal Opportunity Commission.
This is REALLY IMPORTANT and from this, we’ll be able to shift the conversation.
So what I’m asking from you today: what you can do in the immediate future to make bathroom experiences relieving for everyone BUT ALSO to do the work to make the change happen on a wider level for people who don’t have the same privileges that you do in that space.
Let us get rid of suffocating urinary leashes for trans* and gender diverse folks and all get that building code UPDATED, not OUTDATED.
Rhen Soggee is ActNow’s co-CEO and Executive Director