Victory for the Trans Community
On 15.6.2020, the Tel Aviv District Court rejected the approval of a class action lawsuit submitted by four women against some of the Aroma chain’s cafes, in a decision that addresses Israeli rulings on the issue of transgender accessibility to inclusive restrooms for the first time.
Transgender people suffer from harassment and violence on a daily basis in designated public restrooms. In a large-scale survey conducted in the US, 59% of gender variant people avoid using public restrooms. Of that same sample, 89% reported that they refrained from using public restrooms even when they needed to; whereas 52% reported that they avoid eating or drinking so as not to need to use the restroom.
It is thus welcome that many public places have begun to offer unisex restrooms, which are most often single stalls without any gendered signage.
The Aroma chain has begun using such stalls in a large number of branches. The stalls may be accessed via an open common space, they are unmarked, and whoever enters may lock them from within when using them. Although trans people are entitled to use gendered restrooms in accordance with their gender identity, unisex stalls increase access to this vital service for transgender people, and their capacity to partake in public life via conditions that reduce concern for conflict, remarks, or violence on behalf of others using public restrooms.
However, a class action lawsuit was filed against these restrooms at the Aroma chain, demanding gendered restrooms. Prior, several similar lawsuits have been filed against cafes and other restaurants, all of which led to compromises, capitulation, and gendering stalls.
The lawsuit alleges that the cafe chain violates the law in offering its customers unisex restroom stalls, which are used by all genders. The plaintiffs claimed that business licensing regulations for restaurants and cafes require separate restrooms for men and women. They claimed that restrooms of the type offered by Aroma, harmed female customers compelled to enter stalls previously occupied by men, which is messy, uncomfortable, and demeaning.
On 3.28.2017, the nonprofit Ma’avarim - Sustainable Change for the Trans Community, the Gila Project for Trans Empowerment (Transgender People for Social Justice), the Aguda (Association for LGBTQ Equality in Israel), and ACRI, submitted a request to join the proceeding as amici curiae. The request to assist customers from the trans community, who are very interested in individual bathroom stalls of this nature, was accepted by the court.
In the brief that we submitted as amici curiae, we claimed that access to services is a particularly important issue for the trans community, due to hostility expressed by some members of the public regarding trans people’s use of gendered restrooms. We claimed that single unisex stalls are not only a suitable solution for the trans community, but should also be encouraged at large, rather than blocked through spiteful lawsuits. Affidavits indicating trans peoples’ challenging experiences in gendered restrooms were attached to the brief.
We claimed that the regulation was subject to several interpretations as it was written during a period in which the Ministry of Health’s deputy legislator was solely presented with one model for restrooms – the standard multi-stall restrooms, in which the deputy legislator wanted to ensure safe and suitable conditions, thus requiring gendered separation. In contrast, single unisex stalls do not violate the regulation whatsoever, as they maintain gendered separation during use, providing entirely private conditions for each respective individual. We also put forth that no members of any group are harmed as it cannot be claimed that single unisex stalls demean or cause anyone discomfort.
On 6.9.2018 the Attorney General submitted the Ministry of Health’s position regarding the case, according to which interpretation of the regulations is unequivocal and requires gendered restrooms, such that the chain must designate restrooms per gendered signage. Per the Ministry of Health’s position, these regulations must be enforced via a petition to the High Court of Justice and not by way of a class action.
On 24.10.2018, we submitted a response to the Ministry of Health’s position. We claimed that the Ministry of Health’s position should not be granted special weight, as its stance does not address professional health considerations whatsoever, but rather legally interprets the language of the regulation, such that it has no advantage over the court. We further claimed that these regulations need not be repealed, but rather reinterpreted in an up-to-date fashion, and that even if the regulation is violated, it does not constitute a breach of statutory duty as this infringement requires that damage caused by the civil wrong be an expression of the harm to which the legislation refers, and use of single unisex restroom stalls is harmless. Furthermore, we claimed that such use may not be deemed harmful, while the same regulations permit single unisex restroom stalls in small dining establishments and with regard to accessible restrooms for people with disabilities.
In the ruling the court accepted the Aroma chain’s claims and that of the amici curiae, rejecting the request for approval of the class action.
The court ruled that the plaintiffs provided no factual basis for the causal link between the alleged violation regarding harm caused to women in using unisex restrooms, merely due to the fact that a man had previously used the stall, and that the allegations entailed stereotypical shameful generalizations about an entire public. The court noted that upon considering approving a class action lawsuit, it must not only bear witness to the harm caused to those represented in the case, but also to other groups, including transgender people. The court completely rejected the plaintiffs’ attempt to claim that the group is negligible and need not be considered.
With regard to the interpretation of the regulation concerning the existence of separate restrooms for men and women, the court deemed it unnecessary to adopt an interpretation for the purpose of making a ruling on the case, leaving it at the discretion of relevant parties, especially as the attorney general declared intent to reassess the regulation. The court even noted that should the interpretation of the regulation not allow for single stalls, the regulation may contradict constitutional principles and other laws, deeming it necessary to consider the issue within such frameworks as well.
For more information (Hebrew)