This Article challenges two widely‐embraced theories about how public intimate spaces (e.g., toilets, locker rooms, showers, etc. hereinafter called “bathrooms”) first became separated by sex. The first challenged theory claims that the very first instance of sex‐separation in public bathrooms occurred in 1739 at a ball held at a restaurant in Paris. Under this first view, sex‐separation first emerged as a sign of upper‐class gentility and elitism. The second challenged theory argues that a consistent practice of differentiating bathrooms by sex did not emerge until the late nineteenth century. According to this view, bathroom sex separation was imposed when authorities overreacted to the notion of the intermingling of the sexes as women entered the workplace during the Industrial Revolution. Thus, the second view holds that bathroom sexseparation is rooted in sexism, paternalism, and outdated Victorian notions of modesty.
This Article argues that both of these theories are wrong. With respect to the first theory, the author’s research indicates that the ball in question was not at a restaurant. It was an invitation‐only, royal masquerade ball for some 14,000 people. It was hosted by King Louis XV at the Hôtel de Ville in Paris to celebrate his daughter’s wedding. Moreover, it was not the first instance of sex‐separation in bathrooms. That ball may, however, evidence an attempt to extend heterosexually‐centered bathroom norms into spaces like the masquerades. The author argues that the masquerades were likely a “safe space” for sexual minorities and places where, by consent, flexible sex and gender norms usually prevailed. The expansion of sex‐separation into the masquerades and similar gatherings was likely driven by religious and royal authorities, and were likely supported by powerful sexual minorities among them. The result was that less powerful sexual minorities were pushed further into the closet.
As for the second theory, which argues that sex‐separation first emerged in the late nineteenth century, the Article establishes that sexseparation well preceded that time and, indeed, dates back to ancient times. Generally speaking, as public policy, the practice was rooted primarily in safety and privacy concerns, although patriarchal norms affected it. Indeed, this Article argues that nineteenth century laws mandating sex‐separation in factories were among the earliest anti‐sexual harassment laws in the nation. These laws fell short in the effort, however, because they lacked supporting legal structures, because the problems of sexual assault and sexual harassment proved enduring, especially for the female‐bodied, and because they did not sufficiently consider the safety of male‐bodied persons who were similarly vulnerable to assault and harassment.
The Article concludes that the alternative bathroom histories fail. As they propose an explanation of sex‐separation that advances the interests of some sexual minorities, they offer a narrative that oppresses women and the female‐bodied. They ignore the stories of women’s lives and, in particular, their struggles with sexual assault and sexual harassment. They similarly ignore the struggles of the poor for safe intimate spaces. Women and others must push back on approaches that contort women’s history, for they are rooted in sexism and patriarchy, even when they may be intended to advance the freedom of other groups.
Note: The last seven pages of the piece (291-97), omitted in the PDF below, contain images that are too large to host on this website. The images can be viewed, however, on databases like Lexis.
*© W. Burlette Carter, Professor Emeritus, The George Washington University Law School; J.D., Harvard Law School; B.A. Agnes Scott College. I thank former students Priom Ahmed, Halcyon Apy, Rebecca Krishnan‐Ayer, Christopher Peña, and Joseph Turman for their thoughtful contributions to this work. I also thank the editors of the Yale Law & Policy Review for their efforts. The views and claims expressed herein are solely my own.