SD Law School May Face Potty Parity Law Suits

WASHINGTON - Oct. 17, 2017 - PRLog -- The Law School of the University of South Dakota may soon face legal actions - including complaints and law suits over sex discrimination, and for violation the U.S. Constitution's Equal Protection Clause - because it provides clearly inadequate and insufficient restroom facilities for its female students, says public interest law professor John Banzhaf, who has been dubbed "The Father of Potty Parity."

        Banzhaf, whose legal complaints forced the U.S. House of Representatives to finally establish a restroom adjacent to the House floor for female members, the University of Michigan to increase restroom facilities for women at its Hill Auditorium, and Obama's Inauguration Committee to bring in additional portable potties and to make them all-gender, notes that courts have now ruled that failure to provide adequate restroom facilities for women constitutes illegal sex discrimination.

        Although women now make up more than 40% of the Law School's roughly 200 law students, the law school provides only 7 toilets [35%] for women, as contrasted with 7 toilets and 6 urinals [65%] for men.

        This barely met building code standards when the school was constructed in 1981, when only about 32% of law students were female, and it is clearly both insufficient and illegal today, argues Banzhaf.

        He notes that virtually all statutes and building codes today demand that restroom facilities for women be at least equal in number to those for men, and newer updated ones require a 2-1 ratio, since several studies show that it takes women, on the average, about twice as long as men to perform the same basic function.

        For example, the American Society of Theater Consultants, the Building Officials and Code Administrators International (BOCA), and statutes in Massachusetts, Tennessee, Texas, and Virginia all require two female toilet facilities [toilet or urinal] for every male facility in order to equalize the lines.

        At least two U.S. appellate courts have now held that failure to provide adequate restroom facilities for women constitutes unlawful gender-based discrimination, even if those for woman are exactly the same as those for the men.  At the South Dakota law school, women have only about one half the facilities provided for men, making their case for illegal sex discrimination even more compelling.

        Banzhaf suggests that female law professors and their female students warn the law school administration that they are prepared to file formal legal complaints of sex discrimination with the South Dakota State Commission of Human Rights under CHAPTER 20-13, and perhaps also in state court.

        He also suggests that they warn about a possible separate federal complaint with the Office of Civil Rights of  U.S. Dept. of Education, as Banzhaf did to prod the University of Michigan to add more female restroom facilities.  In his Michigan complaint, he argued as follows:

        "For these two separate and distinct reasons — that imposing a heavier burden on females than upon males with regard to urination constitutes unlawful gender discrimination under federal statute law, and that it also violates the United States Constitution — it appears clear that your office has jurisdiction over these complaints . . .

        If the University is in violation, this could create liability not only for the University, but also for individual state employees [under 42 U.S.C. 1983] and for federal officials who act in concert [under Bivens].

        The following two federal judicial opinions make it clear that this Office has jurisdiction over complaints of this character.

        In Lynch v. Freeman, 617 F.2d 380 (6th Cir. 1987), the court held that even providing identical restroom facilities to males and females may constitute sex discrimination because their needs are different for immutable biological reasons.  The court held "anatomical differences between men and women are  'immutable characteristics,' just as race, color and national origin are immutable characteristics.  When it is shown that employment practices place a heavier burden on minority employees [in this case females] than on members of the majority [males], and this burden relates to characteristics which identify them as members of the protected group, the requirements of a Title VII disparate impact case are satisfied."

        Similarly, in DeClue v. Central Illinois Light Company, 223 F.3d 434 (7th Cir. 2000), the Seventh Circuit ruled that providing toilet opportunities unsuitable for female employees but suitable for male employees would rather clearly constitute a sexual harassment claim under the theory of "disparate impact."

        A number of lower federal courts have now ruled in favor of "potty parity," he says.

        Banzhaf has written to all the professors at the law school who are female, arguing that their rights as employees, and also the rights to which female students of the law school [a public accommodation] are guaranteed, are being violated, and that they should take legal action if they value their rights as women.

        "I can't protect 'squatters' rights' - another phrase often used in place  of 'potty parity' or 'porcelain proportionality' - if the squatters are not willing to stand up for their rights to sit down," says Banzhaf.

        They certainly should not be reduced to pleading with the USD Law School Task Force when the Chairman has determined that it wasn't the task force's job to decide if they need to "put up walls or add toilets."

        Interestingly, it is possibly to solve the potty parity problem without putting up walls or adding toilets, using an approach Banzhaf helped develop and test for over a year at his own law school.

        He promised to share this information, as well as to share his legal research and legal pleadings with women at the Law School, if they are not afraid to stand up for their own rights.

        Banzhaf himself has won more than 100 legal actions attacking sex discrimination against women.

http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf