Introduction
Everyone poops.
For most Americans, this is an uncomplicated task. Yet for many, finding a place to use the bathroom is a major struggle.
For those experiencing homelessness,
lack of access to public bathroom facilities often forces the humiliating need to urinate or defecate in public.
This issue has been exacerbated by the COVID-19 pandemic.
Many bars and restaurants closed their doors or limited access,
and public bathrooms in places such as libraries and subway stations have been slow to reopen after shutting down for social distancing.
While some of these spaces are now reopening, COVID-19’s longer-term effects on the homeless population will continue to reverberate.
Further, recent inflation has supercharged the housing affordability crisis, leading shelter officials in fifteen states to report “a dramatic increase in the number of people, particularly single mothers, seeking services” in 2022.
Homelessness has become an “acute crisis.”
Unsurprisingly, bathroom access is more strained than ever. In New York City, the closing of bathrooms and the increase in people experiencing homelessness contributed to a near-doubling of public urination complaints during the pandemic.
This problem is far more than an inconvenience to the city-dwelling public. For those experiencing homelessness, not having a place to go can result in criminal consequences.
And, in the words of one formerly homeless person, “[o]ne of the consequences of public urination for homeless people is humiliation.”
The criminal and dignitary consequences mean much is at stake for those in need of a place to go. But the bathroom options available to those experiencing homelessness—shelters, public (i.e., municipality-operated) bathrooms, and private bathrooms open to the public (e.g., restaurants and shops)—do not meet the population’s needs.
Scholars and local leaders have considered several possible solutions to this problem. Common refrains call for the construction of more public bathrooms and for the decriminalization of public urination and defecation.
One potential stopgap solution has been discussed less frequently: banning customers-only bathroom policies.
These bans would prevent businesses of public accommodation—such as restaurants, bars, and shops—from restricting bathroom access to paying customers only.
While these bans have yet to find success in American cities,
they could ease the burden on municipalities and prevent discriminatory exclusion.
Scholars—most notably Professor Ron S. Hochbaum—have suggested these bans as a solution to the bathroom-access problem for those experiencing homelessness.
Local leaders and community activists have similarly challenged business owners’ right to exclude noncustomers from their bathrooms (though these challenges have been either unsuccessful or more limited than outright bans).
Such bans pose difficult legal and political questions. Most significantly, the recent Supreme Court case Cedar Point Nursery v. Hassid
—which expanded takings doctrine and made government regulation of access rights more difficult
—creates a complex legal roadblock for local lawmakers seeking to ban customers-only bathrooms. The academics, lawmakers, and activists who have discussed limitations or bans on customers-only bathrooms have yet to address the challenge posed by Cedar Point. This Note fills that gap by analyzing the landscape of post–Cedar Point takings jurisprudence. In doing so, it serves two audiences. First, it serves those seeking to better understand Cedar Point’s convoluted takings doctrine. By providing an example of the doctrine’s application to an actual legal problem, it reveals the indeterminacies of the Court’s approach and offers solutions for navigating them. Second, it serves local leaders who seek to alleviate the suffering of those living in homelessness. It lays out a clear pathway for those attempting to take advantage of private bathroom infrastructure by banning customers-only policies.
This Note reaches two related conclusions. First, banning customers-only bathrooms likely would not be a taking.
While Cedar Point ostensibly limited a host of access-rights regulations, it carved out several exceptions (perhaps to avoid disturbing too much existing legislation).
Bans on customers-only bathrooms would likely fall into one such exception. The Court’s broad holding may thus be less exacting than it appears.
Second, regardless of whether these bans are takings, municipal leaders can best serve the public by providing just compensation for the access rights that the bans may “take.”
This solution avoids the indeterminacies of Cedar Point, softens the political blow to business owners, and centers the experience and dignity of those living in homelessness. It is also more cost-effective than building municipality-operated bathrooms.
This Note proceeds in three parts. Part I summarizes the adverse, discriminatory effects that customers-only policies have on people experiencing homelessness. It then describes past attempts at banning or limiting customers-only policies, concluding that the time for a ban is ripe. Part II addresses potential problems such bans may encounter if attempted in the future. First, it considers whether banning customers-only bathroom policies would amount to a taking under Cedar Point. Then, it discusses policy challenges regarding line drawing and enforcement as well as the potential for political backlash. Part III weighs the challenges of bans against their potential upside and provides guidance for municipal leaders who seek to tap into private-business bathroom infrastructure to increase bathroom access.