Thursday, December 04, 2003

Capitalism and the Law: NY Council Introduces 'Potty Parity' Bill

The AP reports GWU’s "public interest" lawyer John F. Banzhaf III has struck again:

Potty parity. Squatters rights. Go ahead, make fun of the fact that several City Council members introduced a bill Wednesday to have more restrooms set aside for women than men in most buildings.

To women — and one male law professor dubbed "the father of potty parity" — it's a matter of gender equity.

"Women need more restroom facilities simply because women take longer," said John F. Banzhaf III, a public interest law professor at George Washington University Law School during a telephone interview Wednesday.

Banzhaf, who was dubbed the "father of potty parity" for filing several court complaints — including the first one on the federal level — wrote recently that these legal cases show that women are standing up for their rights "even if they can't stand up while exercising those rights."

"We would never tolerate a system where women would routinely have to wait five times longer than men to have their blood tested, even if men's and women's blood were tested for different things," Banzhaf argues. "And we shouldn't tolerate a system where women routinely are forced to wait five or more times longer than men to perform a basic and necessary personal function."

So why might women take longer in the bathroom? Because they often have small children to tend to, they wear more clothes, and, as Councilwoman Yvette Clarke put it, there's that anatomical difference.

"We don't have the same type of equipment that men have," said Clarke, one of the main sponsors of the "Restroom Equity Bill."

And women don't use urinals, said Banzhaf, another reason why men can zip in and zip out of restrooms.

Still laughing? You should stop now, Banzhaf said.

"I think the courts are recognizing that restroom facilities are an essential important service," he said.
No, Prof. Banzhaf, I'm laughing. So a business offers restroom facilities to its customers, and now it has an obligation to build those facilities to ratio determined by law. What if a business only offered a unisex bathroom? What if a business refused to provide restroom accommodations at all, or to only one sex? In John Banzhaf’s universe, this is not an issue for customers to decide though their continued patronage, but for the government, though legal sanctions.

This is the logic of the American with Disabilities Act taken to its natural conclusion. The foundation of the ADA was that the government ought to have the power to compel businesses to offer certain accommodations under penalty of the law. If the government can mandate the size of bathroom stalls, why can’t it mandate the ratio of male facilities to female facilities?

I can see it now: “Whereas, it is the sense of the New York City Council that it takes a woman longer to pee than a man, and as women go to the restroom in pairs, there shall be two stalls for women for ever one stall for a man.” Think I’m kidding: Ohio already has such a law. Ohio's "potty parity" code provisions for public buildings dictate one toilet for every 50 women and one for every 100 men.

Banzhaf thinks he has the right to use government to lord over one of our life’s choices. I wonder how long it will take him to shift his targets from trivial matters to ones that substantively threaten our freedom.

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