Gender neutral toilets cater for people who for many reasons feel uncomfortable using a toilet that is designated as either male, female or unisex. In the future, we will see an increase in these amenities, particularly in educational buildings.

The National Construction Code 2015 has specific requirements when it comes to the provision of toilets in all commercial buildings. These requires are prescribed within Section F of the Building Code of Australia, Volume 1 (BCA). The BCA has specific objectives with toilets, which include safeguarding occupants from the “loss of amenity arising from the absence of adequate personal hygiene facilities.” Furthermore, the ‘Functional Statement’ requires a building to be provided with suitable sanitary facilities for personal hygiene.

As a performance-based document, the BCA also has minimum levels of compliance in all aspects of construction which include structural requirements, fire resistance, access and egress, fire services and equipment, energy efficiency, and of course sanitary facilities. These minimum requirements may be achieved through a prescriptive approach following each detailed section of the BCA, or a performance-based approach which adopts some level of innovation or creativity. Regardless of the approach taken, the building solution must meet the minimum performance requirements.

When we consider these minimum performance requirements for toilets we find that the BCA states that suitable sanitary facilities for personal hygiene must be provided in a convenient location, to the degree necessary, appropriate to:

• the function or use of the building
• the number and gender of the occupants
• the disability or other particular needs of the occupants

This is where there is now some contention and debate both internationally and in Australia. The use of the term ‘gender neutral’ is gaining recognition and acknowledgement around the world. Many people around the world do not align to their gender at birth, others are born with ambiguous genitalia that differ from what is perceived to be ‘normal.’ These people find themselves in gender minority groups that comprise people who may define themselves in a number of ways, including being either intersex, gender neutral, third gender, agender, Mx, genderqueer, genderfluid, non-binary, transgender, or bi-gender. They may also find themselves in a situation where they find performing a bodily function that most people take for granted a stressful event.

It is now debateable if we are providing suitable toilet facilities in public buildings for the use by these minorities in society. It is also widely recognised that a public toilet can be an unsafe environment for people in gender minority groups. In fact, according to a report published by The Transgender Law Centre in the United States, there have been cases of transgender people being refused access to appropriate facilities at their place of work or school. Additionally, there have been reports of others being attacked in public bathrooms.

Earlier this year, the Australian Human Rights Commissioner, Tim Wilson, released a report that found 71.79 per cent of respondents to a survey said they had experienced harassment, violence or bullying due to their sexual orientation, gender identity or intersex status, and more than 90 per cent said they knew someone who had experienced it. Of these reported cases, 26 per cent reported it being due to their gender identity. The report also found 24.31 per cent of respondents had been refused a service and 44.55 per cent had been excluded from participation in an organisation on the basis of their sexual orientation, gender identity or intersex status.

Research undertaken by Jody L. Herman, from the UCLA Williams Institute found that 70 per cent of transgender and gender-nonconforming respondents had experienced difficulties when using gender-specific restrooms in Washington, D.C. The research found that:

• 27 per cent of those working experienced problems using work restrooms which in some cases, caused them to change jobs or leave their employer entirely.
• 54 per cent reported a physical problem from trying to avoid using public restrooms, such as dehydration, kidney infections, and urinary tract infections.
• 58 per cent reported behaviour to avoid going out in public due to a lack of safe public restroom facilities.
• 10 per cent of those studying reported negative impacts on their education, including excessive absenteeism and dropping out of school due to related issues.
• People who had not medically transitioned were found to be worse off in some measured survey outcomes.

Recently there’s been push from student movements to provide gender neutral toilets in addition to male, female and unisex designated toilets. Overseas, there are now numerous universities that now provide gender neutral toilets, including the University of Limerick Students’ Union which earlier this month launched gender-neutral toilet signage to promote gender tolerance. The signage states “Anyone can use this restroom regardless of gender identity or expression.”

In June 2015, the University of Northampton in the UK took a proactive step to address this need by declaring all single-cubicle accessible toilets to be gender neutral. The Edinburgh University Students’ Association (EUSA) requires at least one gender neutral toilet in each venue and that these facilities are clearly signed and separate from accessible toilet facilities already provided. The LGBT+ Society at the University of Bristol has even gone as far as building a website to map the locations of gender neutral toilets. Meanwhile, according to a University of Massachusetts Amherst’s LGBTQ organization, there are now more than 150 schools across the United States that have gender-neutral toilets.

People dealing with gender identity issues can experience stress and mental health problems when struggling with how they fit society’s norms. Research undertaken in the United States found that 11.5 per  cent of youth self-identified as being in a gender minority, such as transgender, gender nonconforming or a gender different from their sex assigned at birth. Of these, gender minority youth had increased cases of alcohol use, marijuana use, and non-marijuana illicit drug use, as well as experiencing a disproportionate amount of bullying and harassment.

Closer to home, the number of cases of children with the diagnosis of gender dysphoria, being a condition in which a child’s subjectively felt identity and gender are not congruent with her or his biological sex is increasingly being reported in the press. An ABC Four Corners investigation in late 2014 found that 18,000 Australian students identify as transgender and a “staggering 99. 5 per cent of people who identify as transgender in adolescence continue to do so throughout their adult life.”

According to the organisation Intersex International Australia, about 1.7 per cent of children are born intersex, although no birth is ever registered as intersex.

Given this prevalence in society we really ought to be doing as much as possible to reduce the psychological stress and anxiety experienced by these minority groups, including providing safe and private toilet facilities. People with gender alignment issues or gender dysphoria can have psychological symptoms including anxiety and depression, resulting in self-harm and suicidal ideation. The ability to utilise a suitable toilet could be one step to reduce this stress.

In May this year, the Australian Human Rights Commission released a report assessing lesbian, gay, bisexual, transgender and intersex (LGBTI) inclusiveness. The report stated that many Australian universities are not doing enough to include LGBTI students. Provision of gender neutral toilets would be a positive step in addressing the shortfalls of this assessment.

So, getting back to the BCA, how do we provide these important facilities? Well, the performance requirements are the answer. The provision of gender neutral toilets is outside the prescriptive requirements, so we need to accept their use under a performance-based solution as a variation from the prescriptive requirements. When doing so, we also must accept the use of gender neutral signage which differs from the current BCA. It would undoubtedly be a reasonable approach to provide an extra toilet as gender neutral toilet, particularly in educational facilities. When doing so, we can ensure the needs of all occupants are considered in a building and there are suitable toilets provided for everyone’s use.

Some serious thought needs to be given to this issue as a national level. As the Australian Human Rights Commissioner, Tim Wilson, has stated when discussing Moonee Valley Council’s draft plan for gender neutral toilets, “I don’t see what the big deal is.”