Bathrooms are renowned as places where one can think deeply about things, but deciding which bathroom to use in a restaurant — men’s or women’s — really shouldn’t occupy the gray matter.

The Maine Human Rights Commission, however, has made this simplest of selections way more difficult, by upholding a discrimination complaint from Brianna Freeman of Lewiston — given name Bruce — after Freeman was barred from using the women’s restroom at the Denny’s in Auburn.

Freeman was a regular customer, and was dressed clearly as a female. Yet when she used the women’s restroom, a female customer complained. Denny’s management was forced to act and reached, in our estimation, the logical conclusion: sex, not gender, is the deciding factor for restroom use.

Those terms — sex and gender — are mutually exclusive. Sex is the straightforward appraisal of the anatomical realities of a particular person. It’s either one, or the other. Gender is a more dynamic definition toward self-identity, which allows individuals to define themselves as man or woman.

The latter self-defining of gender has spawned a generation of psychological and social research, which has centered around whether the male or female identity is natural, or nurtured. There are studies that say children are born gender-neutral and are conditioned into an identity, instead of just having it.

While such mind-bending questions are proper for academic pondering, their application in the Maine Human Rights Commission process are out of place. By putting gender over sex, in the case of bathrooms, the panel has created a problem that may only be solved by making restrooms unisex, or making establishments like restaurants create a third restroom option.


The core issue is how bathrooms are designated. Denny’s, like most probably would, delineated their bathrooms on the basis of sex, because this is how it’s historically and architecturally been done. It’s the reason there are urinals in one restroom, none in the other.

If restrooms were meant to be divided by gender — given all its fluid definitions — there would be one single design of the physical facilities that lie within. All restrooms would have banks of closed stalls, because they are the only form of commode that can be considered gender-neutral.

But, as we all know, this is not the case. Restrooms are made sex-specific because of the physiological differences between the sexes. Half of us stand, half of us sit. Gender identity has nothing to do with it.

Or it didn’t, at least, until now. Has restroom use become dependent on not only the gender-awareness of the person who needs to use it, but the gender-interpretations of other patrons as well? Talk about an existential exercise. Why so difficult?

It shouldn’t be. The MHRC erred on the side of gender, which is understandable, but failed to consider the definition of sex. Bathrooms should be based on the latter, not the former. It is a physiological, not psychological, decision.

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