Is It Illegal for a Man to Use the Ladies’ Room?

In Charlotte, there is a controversy over whether a transgendered person should use the bathroom assigned to his or her biological sex or to the sex with which he or she identifies. The Charlotte Observer has the story here. This post doesn’t address that issue directly, but instead concerns a related question that the story prompted me to ponder: is it illegal for a man to use the ladies’ room?

There doesn’t seem to be much law directly addressing this topic, or the similar if not identical issue of whether it is illegal for a woman to use the men’s room. A few states have considered enacting specific crimes targeting restroom usage by the opposite sex, as noted by the Huffington Post here and here. But it doesn’t sound as though any of them have passed, leaving me to consider more generally-applicable crimes.

Here are the main possibilities:

Trespass. There’s a strong argument that a man entering a ladies’ room is a person who has, without authorization, entered a building of another and so is guilty of first-degree trespass. G.S. 14-159.12. One might argue that a restroom is not a building but a room within a building. However, it may qualify as a building under G.S. 14-159.11, which defines the term as “any structure or part of a structure . . . enclosed so as to permit reasonable entry only through a door.” Supporting that interpretation is Com. v. White, 538 A.2d 887 (Pa. Super. Ct. 1988), where the court affirmed a conviction for criminal trespass after the male defendant entered the women’s restroom of an athletic club. The court ruled that the restroom was a “separately secured or occupied portion” of the building that was reserved for women’s use. Update: See also In re S.M.S., 196 N.C. App. 170 (2009) (affirming an adjudication of second-degree trespass after a boy entered a girls’ locker room, and stating that “[t]he sign marked ‘Girl’s Locker Room’ was reasonably likely to give respondent notice that he was not authorized to go into the girls’ locker room”).

Breaking or entering. There’s also a reasonable argument that a man entering a ladies’ room has wrongfully entered a building and so is guilty of misdemeanor breaking or entering under G.S. 14-54. Whether the bathroom is a building itself or is instead a part of a building may be irrelevant under State v. Perkins, 181 N.C. App. 209 (2007) (affirming a conviction of breaking or entering after a defendant entered the public reception area of a law firm, then entered “nonpublic space reserved for firm employees”; the entry into the nonpublic space rendered his entry into the building as a whole unlawful).

Disorderly conduct. In some states, incidents of this kind may be charged as disorderly conduct. See Com. v. Young, 535 A.2d 1141 (Pa. Super. Ct. 1987) (affirming a conviction for disorderly conduct after a male defendant entered a women’s restroom and opened a toilet stall being used by a female). But North Carolina’s disorderly conduct statute, G.S. 14-288.4, is limited to specific types of disruptive behavior, and I don’t see anything in the statute that would cover inappropriate bathroom usage.

Indecent exposure. Although indecent exposure might be applicable in some circumstances, most instances of a person of one sex using a restroom assigned to the other sex probably do not involve the showing of private parts required by the indecent exposure statute, G.S. 14-190.9.

Peeping. Although peeping might be applicable in some circumstances, most instances of a person of one sex using a restroom assigned to the other sex probably do not involve sufficient secrecy on the part of the person to implicate the peeping statute, G.S. 14-202.

Common sense. All of the analysis above should be considered alongside a bit of common sense. If a janitor of one sex cleans an empty restroom assigned to the opposite sex, or if a child of one sex accompanies a parent of another sex into a restroom assigned to the parent’s sex, neither the janitor nor the child should be hauled into court. If one bathroom at a gas station is out of order and patrons of both sexes take turns using the remaining bathroom, I can’t imagine a criminal charge resulting. But if a man waltzes into a ladies’ room, for no good reason, my guess is that a charge of trespass, or perhaps breaking or entering, could stick.

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