The current debate over public bathrooms in Europe focuses on who gets to access them, missing the more pressing issue of the lack of them. This piece constructs a legal and policy case for EU intervention to protect the right to pee without having to pay for the privilege.
Introduction
Culture wars often miss the point. The ongoing political debate, heightened by recent elections in Europe and the United States, regarding gender specific bathrooms and changerooms is an example of this. While the far right and left have tied themselves in knots arguing over who should or shouldn’t be able to access certain spaces, and whether such spaces ought to be defined as political or functional, the much more fundamental issue of the existence of said spaces has been left to the wayside. The question we therefore pose in this piece is: what is the point of having a debate about accessing a service when the service doesn’t really exist?
We approach the question posed by seeking to shift the debate from ‘who’ gets access, to ‘what’ is accessible, ‘why’ this is the case, and ‘how’ we can improve the situation in Europe. We leverage the culture warrior call for greater government regulation of bathroom access, to argue for improved public provision of said spaces over the continued reliance on private venues. We do this by considering the issue from human rights and public policy perspectives, focusing on the fundamental importance of free access to public bathrooms to the fulfilment of a range of positive and negative personal rights (right to participation in public life and the right against discrimination etc), social and political rights, as well as the economic prosperity of any given community. Given the lacunae of responsibility caused by the current multi-tiered, private-public provision of public bathrooms, we advocate for EU intervention. While not without its political and legal challenges, we see EU involvement as a dual opportunity: to improve the lives of all in the EU; and to more clearly demonstrate the practical link between the EU, human rights, and improved living standards, at a time when both could do with a little extra output legitimacy.
What is a public bathroom, and where are they (or aren’t they)?
Whether consciously or not, the time we spend in public spaces is shaped by the natural need for occasional bodily relief. Despite this, when the time comes ‘to go’, rather than finding ourselves perched over, or pointing into a free receptacle, as Europeans we have become accustomed to paying someone for the pleasure. We’ve all been there – buying a coffee, pastry or museum ticket for the sole purpose of bodily relief.
Given the above, it should be of no surprise that there is no universal European legal definition of what a public bathroom is, let alone a standard determining just how many public bathrooms per head of population ought to be made available in urban and non-urban centres, or requirements regarding public information on the locations of public bathrooms. When the law does regulate bathroom provision and access, in most European jurisdictions, we have to turn to regulations governing labour relations (toilets at work), food and safety regulations (toilets in bars, cafes and restaurants), transport regulations (toilets in planes, trains and buses), planning regulations (toilets in shopping centres, and other developments), or contract (generally between the government and developers). What each of these regulatory fields have in common is that they regulate how others ought to use their private spaces, rather than creating public spaces for all.
So, what are public bathrooms? We contend, in accordance with the literature, that a public bathroom is a publicly funded, free, and universally accessible toilet. Data from FreePee, a crowdsourced website that maps the locations of public bathrooms in Europe, the UK, and the US, suggests that Iceland tops the provisioning charts, followed by Switzerland (46) and Finland (41). Lowest on the list are Romania (2); Spain (6); Greece and Italy (7). While many local government websites provide limited information on the number and location of publicly funded bathrooms, many are pay-for-use options despite being advertised as ‘public bathrooms’ (seeMadrid and Rome). Notable exceptions to the long list of poorly provisioned European cities are: Paris, with over 400 free and accessible public bathrooms (designed by Patrick Jouin, no less); and Warsaw, which now has public bathrooms available at all metro stops. The areas outside of the centres of most major cities, regional cities and towns appear as public bathroom deserts on most maps.
Links between public bathrooms and human rights
While others have written about the inherently political nature of all public spaces, public bathrooms are unique as public spaces that are key to accessing and enjoying others. This was a point latched onto by the likes of the ‘Ladies Sanitation Society’ and the ‘Union of Women’s Liberal and Radical Associations’ during the Victorian drive to bringing toileting practices inside the home throughout England. Such domestication created a ‘loo leash’ – with women’s participation in political, economic and social life in public spaces hampered by the lack of access to public bathrooms. The retreat of the state saw the intervention of the private sector, with department stores seeing an opportunity to extend the leash to those women who frequent their stores – Selfridges opened the first clientele restrooms in London in 1909.
Despite obvious improvements, clear disparities exist. In 2017, a 23-year-old woman was fined 90 euros for urinating in public on a night out in Amsterdam. This led to public outcry after the judge suggested she use one of the 35 public urinals made available to men around the city (there were only four female public toilets in the city at the time). In cities such as Warsaw, women have partnered with businesses to place signs in the windows of those willing to offer their bathrooms to non-clients.
Reflecting on the above – any human right that requires access to public space for its fulfilment is dependent on there being a free toilet (referred to as indivisibility in the literature). Whether it be the ability to take part in public protests (right to assemble), engage in exercise (right to health), or the commute to or partake in transitory work (right to work), a bathroom other than the one in your own home is needed. Access – both real and perceived – restrains our ability to enjoy these rights. Added to this is the intersectional point that it is women, people with particular health conditions, the elderly, disabled people and children who are more likely to be adversely affected by the lack of availability of public bathrooms. Therefore, while not a standalone right under international law (the right to sanitation has been recognised since 2010 as falling within the remit of states parties obligations under the ICESCR), nor under the ECHR (although there have been hints of the Court’s willingness to frame such a right by interpreting Art 8 – the right to private life, in conjunction with Art 14 – the prohibition of discrimination) there is the potential for either a positive or negative construction of a right to a public bathroom.
Re-framing the issue to allow for public intervention
When it comes to public bathrooms in the EU, each Member State takes a different approach. The common theme is an overreliance on the private sector. In parts of Germany and Belgium, cafe and restaurant owners are paid to allow non-customers to enter and use their toileting facilities. In Spain and Italy, while health and safety laws require hospitality venues to provide bathrooms, there are generally no associated access requirements. Even where there are toileting facilities in public institutions such as museums and galleries, very few of these are non-ticketed and free. Therefore, in Europe, access is determined by 1) the prevalence of private, or non-ticketed public venues in a particular area; and 2) a patchwork of different regulations regarding private provisioning and access.
We must recognise that the right to dignity and sanitation do little to move domestic jurisdictions to act. Instead, we must re-frame the issue by turning to hard law, and public policy. This is where the EU can step in. Public bathroom access is an issue that cuts across: fundamental rights, infrastructure spending, and the provision of essential public services likely to produce positive economic externalities both within and across borders. There are therefore several constitutional hooks for the EU’s involvement that would not, on their face, interfere with the competences of Member States, or bother them politically.
Legal basis
There are a few legal and policy hurdles for the EU to overcome should it wish to involve itself in public bathrooms. On the legal front, the regulation and provision of local social infrastructure is a shared competence, attracting the subsidiarity presumption. While a serious hurdle, there are a range of constitutional hooks and precedents for the EU to enter the regulation and provision of public spaces for private purposes. On the policy front, there is the question of the most appropriate funding vehicle for the delivery and maintenance of public toileting facilities. We see potential in pre-existing funding mechanisms, as well as the establishment of a standalone fund, tying euros to the building of infrastructure according to prevailing human rights standards.
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