Wednesday, August 29, 2007

What is the state interest in forbidding public restroom sex?

Idaho Senator Larry Craig's insistence that he is "not gay," despite having pleaded guilty to disorderly conduct for soliciting sex from an undercover cop in the Minnesota Airport was for me an occasion not only for sadness---saying what it does about the persistence of the closet---but also nostalgia.

First, of course, one wonders whether Craig's choice of words reflects a Clintonian precision. Does it depend on what the meaning of "gay" is? If Craig likes to engage in anonymous gay sex but otherwise leads his life as a heterosexual, then perhaps he's right that he's "not gay." Perhaps he's bi. Or simply on the down-low.

The incident also recalled for me an even odder occurrence. When I was an undergraduate at Harvard in the mid-80s, I would sometimes notice graffiti in the stalls of the men's room in the Science Center basement urging patrons to, uhm, engage in sexual acts. Then, one day a story appeared in one of the student papers explaining that this particular restroom was a world-renowned pickup spot for anonymous gay sex. The university responded by, get this, removing the doors from the stalls. The dean of students at the time explained that this was "the standard solution." Whether or not this was true, the result was predictable: the sex in the restrooms ceased but almost no one used the stalls for their intended purpose either.

From the reports on the Craig story, it appears that the "standard solution" has been replaced by or supplemented with a new approach to this problem: undercover police soliciting sex. It is not obvious that this strategy will work. After all, it has been quite ineffective against the drug trade.

But talk of the best way to combat public restroom sex raises a different question: What is the legitimate state interest in forbidding this activity in the first place? I don't mean that as a question of constitutional law. Whatever constitutional protection there is for anonymous sex, surely the state can forbid it in public. Nonetheless, the question lingers as a policy matter.

Obviously, one reason to forbid restroom sex is that it can tie up the stalls. This seems an insufficient explanation, however. I doubt there's a good empirical study (okay, I doubt there's any empirical study) of the question, but it wouldn't surprise me to learn that anonymous restroom sex is a relatively quick affair, substantially quicker than, say, reading the newspaper, an activity that can also tie up the stalls.

Another justification for the prohibition might be to protect people from being grossed out. To my knowledge, I've never been in a public restroom in which sex was occurring in one of the stalls, but I imagine that if I did hear the telltale sounds of sex (whether gay, straight or other) I'd be at least a bit alarmed. But would that fear rational? Isn't it more likely that the participants would be more scared of being discovered? (This recalls the age-old advice given to scared children: Don't worry, I'm sure the bug is more afraid of you than you are of him.)

As this excellent (if catty) entry on the Huffington Post notes, out gay men are unlikely to resort to restrooms for sex. This is a venue more likely to be favored by the closeted. So efforts to shut down restroom sex don't exactly have a disparate impact on gay men as such, but there is nonetheless something vaguely unfair about such efforts.