In Pursuit of Equality in South Africa

Access to Toilets: A Right Denied

CHARLENE MAY1, BIANCA VALENTINE AND GENDERDYNAMIX

 

INTRODUCTION

Gender equality is one of the basic rights guaranteed under the Constitution of South Africa. The enjoyment of the right to equality is further enforced through legislation, policy and codes of good conduct through which the State seeks to eliminate unfair discrimination.

Section 9(2) of the Constitution states that:

‘s9(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.’

Section 9(3) goes further to say that:

‘s9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.’

Section 9(4) extends the prohibition against discrimination to private actors and compels the State to enact legislation to prevent or prohibit discrimination based on any of the listed grounds in s9(3) of the Constitution.
Although South Africa has made great strides in addressing inequality through the enactment of legislation, we have yet to address the enjoyment of the right in a real and substantive manner for rights holders. This critical issue is apparent when one engages members of the transgender or gender non-conforming community in South Africa. A key rights’ violation they continue to face concerns access to toilets in public and work spaces, where toilets are gendered.

This article seeks to uncover some of the problems that transgender and gender non-conforming persons experience in accessing toilets, their rights under the Constitution and why gender-neutral toilets should be made available in public and work spaces to ensure safe, non-discriminatory toilet usage for all South Africans.

GENDERED TOILETS

The concept of gendered toilets is a relatively modern concept that finds it roots in the early nineteenth century in western nations such as the United States of America and the United Kingdom2. In the developing world, the concept of shared toilets has remained the norm3. Gender segregation was, of course, rooted in the notion that women were more vulnerable within society than men and, as a consequence, should be separated from men in public spaces or spaces where intimate or private acts are to take place4. In the early 1800s, the absence of women’s toilets in public spaces restricted a woman’s movements outside of her home. It restricted the time she spent outside in public and her ability to navigate where she went, and so she spent more time within her home, or within the homes of others, where facilities were at hand. The restrictions of toilet access in public spaces, therefore, contributed to and maintained women’s ‘appropriate role and place within society’5.

Within the workplace, the issue of access was compounded, as workplace and sanitation facilities were not designed for women in the workplace. Workplaces did not make provision for toilet facilities for women, particularly in male-driven industries such as fire and rescue services and the taxi industry6. The comparison between the restrictions placed on women, and the control over their movements and behaviour, draws strong parallels between the same arguments made by transgender, intersex and gender non-conforming individuals today. The question is whether we still live in a society where such social controls are needed or warranted within society?

Proponents of gendered toilets are concerned about the safety of vulnerable groups within society, such as women and children, and argue that gender-neutral toilets would increase opportunities for sexual predators to locate, isolate and attack potential victims7.

Proponents of gender-neutral toilets argue that these facilities may actually make toilet access easier and more comfortable for the most vulnerable members of society. The approach, for instance, benefits a larger grouping within society, such as children and the elderly, who might find themselves accompanied by a care worker/care giver of the opposite sex. It also avoids the possible embarrassment that may go along with accidentally choosing to enter the incorrect toilet in a public space8.

The impact of gendered toilets

Participants in the Gender Dynamix and Legal Resources Centre’s (LRC) study (the Study) on toilet usage in 2013/14 gave the following feedback in respect of a question around how they felt when they have been denied access to a toilet:

‘Embarrassed, small, uncomfortable, disrespected, annoyed, confused, insulted, offended, invalidated, sick, angry, disappointed, horrible, irritated, inhuman, discriminated against, and less of a human being’

Safety concerns factored significantly in the decisions for many of the participants, particularly women. Transgender women or gender non-conforming women who appeared androgynous, or what is considered traditionally masculine, reported the most difficulty in accessing public toilets due to safety concerns. ‘It is difficult entering a female toilet looking like a man, I would rather be stared at than risk being raped.’9 Another participant indicated that because she was a transgender woman and not necessarily recognisable physically as a woman, she simply does not use public toilets due to fear of being confronted in public or hurt. Another participant shared how she was asked to expose her genitals in order to prove her gender before she was allowed to use the bathroom of her choice in a public setting.

Many of the Study’s participants confirmed that they had been denied the use of a toilet in a public space because of their gender identity at least once. Individuals who have been denied access to toilet facilities include cleaning staff, security guards and even other toilet users. Participants expressed that they simply avoid using public toilets as a result of the abuse, embarrassment, hostility and violence they have encountered. Many will simply train themselves to wait until they are home in order to use a bathroom, or relieve themselves outside where no-one can see them. In addition to safety fears, there is also the expressed need to belong, to be recognised for their lived gender, and so they simply avoid situations where they would not present as ‘expected’ or the ‘norm’ and, of course, avoid the discomfort and embarrassment of having to publicly explain your gender identity to a total stranger.

These situations are not only present in public toilet facilities, such as shopping malls, but participants expressed experiencing difficulties in education settings – schools, universities, residences and campus toilets are mostly gendered and, therefore, exclude many who are not able to make use of them. Workplace discrimination was reported, but again participants expressed the deep need to be recognised for their lived gender, not wanting to draw attention to themselves, and simply being accepted. They have, therefore, managed to find ways of behaving in a manner that brings comfort to others in the workplace, while at the same time enduring the discrimination.

A CONSTITUTIONAL ARGUMENT

In South Africa the foundational values of dignity, equality and freedom are enshrined in the Constitution. Therefore, in as much as these are rights that one can assert, they are also values that are instructive in respect of the value system to which we, as South Africans, should aspire. The intersection between rights and values are key to transformation, but also key to recognition and realisation of rights.

(a) Dignity

‘Everyone has inherent dignity and the right to have their dignity respected and protected.’10

Human dignity can at best be described as the right from which all other rights flow, and underpins the rationale that all persons are worthy of equal treatment and equal respect. Chaskalson CJ said that, ‘Dignity is the recognition of the inherent worth and value of every human being.’11

In its 2014 Report on Water and Sanitation, the South African Human Rights Commission (SAHRC) equated sanitation to dignity. The use of bathroom facilities is undoubtedly one of the most private ‘public’ functions associated with being a human being. When one assesses the language used by the participants in our survey, it is apparent that the language used is that associated with instances of humiliation and degradation. This is a particular indictment on South Africa, where respect for human dignity implies a tolerance and acceptance for all persons based foremost on their humanity.

(b) Privacy

Both our Constitution, as well as our common law, regulates the right to privacy. The Constitution defines the right to privacy as:

‘Section 14 Everyone has the right to privacy, which includes the right not to have
(a) Their person or home searched;
(b) Their property searched;
(c) Their possessions seized;
(d) The privacy of their communication infringed’

Section 14 therefore guarantees a general right to privacy, as well as protects the right holder against infringement of the right. The Common law recognises the right to privacy as an independent personality right that forms part of an individual’s dignitas and, therefore, a violation would amount to an injury to the personality of the person.

Through the stories they shared, participants have indicated an almost daily infringement of their right to privacy when accessing toilet facilities within public spaces. This is a direct infringement of the individual’s dignity under our Common law and, as such, is recognised as being an injury to the person. Yet this almost daily infringement is neither frowned upon nor addressed, and has become normalised through a day-to-day gendered toilet system that refuses to recognise the needs of our gender non-conforming community.

(c) Freedom and security of the person

As discussed, many of the arguments for the need to have gendered toilet facilities relate to the identification of a vulnerable group within society and the need to ensure that this group of persons is safe and secure. The freedom and security of the person12 argument, which finds application under section 12(1)(c) of the Constitution, has led to the enactment of numerous laws and policies geared towards protecting women and children from violence in our country.

We could so easily make the same arguments in favour of policy and legislative action in order to protect an equally vulnerable group within our society, namely gender non-conforming persons. The very real fear that they have expressed,as well as those tasked with providing security in public settings, surely warrants that steps be taken to protect them. The Constitution does not require that a vulnerability be established before such active steps can be taken or to invoke the right. The right is guaranteed to everyone and so gender non-conforming persons are entitled to protection, but also freedom of their person, to be able to utilise whichever toilet they choose, and to be able to exercise that right free from violence.

RECOMMENDATIONS

There is an overwhelming need to educate the South African public on the principles, rights and values enshrined in our Constitution. It is simply not enough to have rights on paper without everyone enjoying their rights in a substantive and equal manner.

The majority of the participants indicated that a solution to their problems would be the introduction of gender-neutral toilets, much like the family-designated toilets that are present in shopping malls. This concept will allow for us all to transition to a situation where gender is no longer a precursor or qualifier to use a particular toilet. It would not isolate transgender or gender non-conforming persons in the same way that a ‘special toilet’ would. What is clear from the information provided by the participants, is that they want to remove the stigma of being ‘different’ or ‘other’ and having to explain their gender identity to a complete stranger. The introduction of gender-neutral toilets in public and work spaces would be one step closer to gender non-conforming persons being able to access facilities without fear of harm.

Many entertainment places, such as restaurants and pubs, which often have limited space, have adopted the approach of a gender-neutral toilet. They have been put in place probably out of convenience, but are far more inclusive as a result. A number of hotel chains have also introduced the concept without any reported incidents of violence against women or children. The University of Cape Town also announced in 2014 that they would be embarking on a process of introducing gender-neutral toilets. Initiatives such as these should be receiving more attention so that the methodology can be duplicated and shared as widely as possible. As with the introduction of most social practices, the more people are exposed to doing things differently, the more they will become accustomed thereto. We all have the obligation to be more inclusive, accepting and tolerant. The rights and values of dignity and equality should, after all, be enjoyed by us all.


 

  1. Article is produced based on work undertaken with Gender Dynamix and based on research conducted with gender non-conforming persons nationally
  2. Rutgers L Rev. 409 2008–2009 ‘Workplace Restroom Policies in Light of New Jersey’s Gender Identity Protection’ C J Griffin p. 414
  3. Olga Gershenson and Barbara Penner Ladies and Gents: Public Toilets and Gender (2009) Temple University Press p. 5
  4. Kogan, TS Sex Separation in Public Restrooms (2007) p. 25
  5. Kogan, TS Sex Separation in Public Restrooms (2007) p. 55
  6. Olga Gershenson and Barbara Penner Ladies and Gents: Public Toilets and Gender (2009) Temple University Press p. 5
  7. Christine Overall Public Toilets: Sex Segregation Revisited (2007) p. 82
  8. Christine Overall Public Toilets: Sex Segregation Revisited (2007) p. 85
  9. Response from a transgender woman
  10. Section 10 of the Constitution
  11. Arthur Chaskalson CJ Dignity As A Constitutional Value: A South African Perspective
  12. Section 12(1)(c) Everyone has the right to freedom and security of the person, which includes the right – to be free from all forms of violence from either public or private sources