Erin Mast doesn’t relish taking her teenage son, Carter, into the women’s bathroom. He has a mustache, and at 5 feet 11 inches, he towers over his mother. The 13-year-old draws stares, glares and lately, confrontations.
“Leave your retard home if he can’t go to the bathroom by himself,” a stranger snapped at her a few weeks ago. Carter Mast has autism and he has what are called “high support” needs. He requires a caregiver for a variety of daily activities, including use of the restroom. If he’s out with his mom, that means he needs to use the bathroom with her too, and his mom stands firm.
“People say awful things,” Mast says of residents in her small Upstate New York town of Sodus. “But I’m going to take him to the bathroom, no matter what people say.”
What scares Mast more than the comments, though, is the threat of legislation such as House Bill 2, a law passed in North Carolina last year that required people to use the restroom matching the sex or gender they were assigned at birth. That law made it illegal for anyone, even kids as young as 8 years old, to enter a bathroom with a sign on the door that doesn’t match the gender they were assigned at birth. That included parents such as Erin, and kids such as Carter.
The parts of HB2 that tied restroom usage to the gender that appears on a birth certificate were recently repealed, but similar proposals around the country have disability rights activists joining forces with LGBTQ advocates to voice concerns that these “bathroom bills” could make life harder for hundreds of thousands of Americans.
The National Conference of State Legislatures lists 16 states where similar bills have been proposed in 2017. Some, such as Kentucky’s House Bill 106, died shortly after introduction, but others are slowly winding their way through state legislatures. In the Masts’ home state, for example, a bill that would affect both school and public bathrooms was proposed by New York Assemblyman L. Dean Murray, of Long Island, in February, and it’s still being debated on a committee level.
Mast is worried the bill’s passage could hurt friends who are transgender, but she’s also worried that a law could require her to send her son into a men’s room without the help he needs.
“It appears that the bills’ supporters have given little or no thought to their potential effect on people with disabilities who need assistance in order to use the restroom,” says Sam Crane, legal director and director of public policy for the nonprofit Autistic Self Advocacy Network.
“Many people with disabilities — including significant physical or developmental disabilities — are unable to use public bathrooms safely without assistance,” she says. “Often, a person’s assistant will be someone of a different gender.”
While there’s no single database that tracks how many people require public restroom assistance, CDC statistics show an estimated one in six American kids ages 3 to 17 has one or more developmental disabilities. That number grows to one in five for adults with disabilities. For those who do depend on personal assistants in the restroom, a bathroom bill could present an impossible choice, Crane says.
“[They] either use the bathroom consistent with their own gender assigned at birth and expose their assistants to fines or criminal penalties for accompanying them, or go into the bathroom consistent with their assistants’ assigned gender and risk incurring fines or penalties themselves,” she says. “This policy would further isolate a population that already faces serious barriers due to a shortage of accessible public restrooms.”
Many parents say they’d prefer all public facilities were family restrooms — gender-neutral bathrooms that are larger than a typical stall with a changing table and sink enclosed in the same space as at least one (but sometimes more than one) toilet. If she spots one, Shannon Des Roches Rosa breathes a sigh of relief knowing her son, a “bearded teenage dude,” will have plenty of room and she can offer her support, without being subjected to stares or rude comments.
But the California mom says they’re few and far between in the San Francisco Bay area, where she lives.
“People don’t retrofit for family bathrooms, only new construction tends to have them,” she says.
So more often than not, when nature calls Rosa steels herself, links arms with her 16-year-old and tries to convey via “subtle signals” that he has every right to be inside a bathroom with a female icon on the door.
Rosa hasn’t been actively confronted, but she says she’s ready to stand up for her son with a simple, “He’s disabled. He needs my support. Who are you to question me?” She’ll inform any challenger that the Americans With Disabilities Act guarantees accessibility.
A firm voice from a mom standing her ground might silence some detractors, says Corye Dunn, director of public policy for Disability Rights North Carolina.
“She’s a mom, and her kid just has to pee,” Dunn points out.
But it all depends on who’s making a fuss. If it’s a security guard threatening to throw a mom and kid out of a bathroom, the ADA guidelines for restrooms don’t offer much protection, as they’re largely focused on construction guidelines that ensure safety and accessibility for individuals with disabilities.
“The physical standards are about infrastructure,” Dunn says, “They’re not about gender.”
And while barring a kid with cerebral palsy from using a restroom with Mom or preventing a parent from entering a bathroom with the child would seem to qualify as a barrier of access under the ADA, Dunn says there just isn’t enough language in existing guidelines.
Some of the proposed bathroom bills do provide some wiggle room for folks with disabilities who require bathroom assistance. Texas’ proposed Senate Bill 6, for example, would allow someone such as Carter Mast to bring an assistant of any gender with him into a government-owned bathroom.
But both Dunn and Crane say those provisions are not a panacea, in part because they take away the autonomy of an individual to choose which bathroom will best serve them and make them comfortable — that matching their own gender identity or that of their caregiver.
Besides, advocates from the disability and LGBTQ communities say they have come together to fight the bills, not to have the bills carved out to ease concerns for one side or the other.
“This law is problematic for people with disabilities not just because they might need assistance in the bathroom, but because people with disabilities are lots of other things,” Dunn says. “They’re men, and they’re women, and they’re trans folks, and agendered people and visibly gender nonconforming people. All of these people deserve to go to the bathroom in a public setting.”
Jeanne Sager is a writer and editor based in Callicoon Center, N.Y. Find her on Twitter @JeanneSager.
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