Homelessness Archives - Columbia Law Review

Introduction Everyone poops.[footnote]Tarō Gomi, Everyone Poops (Amanda Mayer Stinchecum trans., Chronicle Books 2020) (1977).[/footnote] For most Americans, this is an uncomplicated task. Yet for many, finding a place to use the bathroom is a major struggle.[footnote]See, e.g., Kim Corona, How New York City Can Improve Bathroom Access, City & State N.Y. (Dec. 15, 2021), https://www.cityandstateny.com/policy/2021/12/how-new-york-city-can-improve-bathroom-access/359812/ [https://perma.cc/X7KZ-FJ63] (“With just 1,103 public restrooms available to use in the city, . . . New Yorkers continue to struggle in accessing clean and working facilities.”).[/footnote]For those experiencing homelessness,[footnote]This Note generally uses “people experiencing homelessness” to describe those who lack a “fixed, regular, and adequate nighttime residence.” See HUD, The 2022 Annual Homelessness Assessment Report (AHAR) to Congress (pt. 1) 4 (2022), https://www.huduser.gov/portal/sites/default/files/pdf/2022-AHAR-Part-1.pdf [https://perma.cc/7D38-MVFQ]. There is no perfect term to describe this population, so this Note uses the most common term—“homeless”—rather than terms such as “houseless” or “unhoused.” See Kayla Robbins, Homeless, Houseless, Unhoused, or Unsheltered: Which Term Is Right?, Invisible People (Aug. 25, 2022), https://invisiblepeople.tv/homeless-houseless-unhoused-or-unsheltered-which-term-is-right/ [https://perma.cc/SVA5-BTM7]. This Note seeks to prioritize the dignity of people experiencing homelessness while keeping in mind that “for housed people who are just looking for a way to help out, policing language isn’t the most helpful thing we could be doing.” Id.[/footnote] lack of access to public bathroom facilities often forces the humiliating need to urinate or defecate in public.[footnote]See Corona, supra note 2.[/footnote] This issue has been exacerbated by the COVID-19 pandemic.[footnote]See id.[/footnote] Many bars and restaurants closed their doors or limited access,[footnote]See id.[/footnote] and public bathrooms in places such as libraries and subway stations have been slow to reopen after shutting down for social distancing.[footnote]See Michelle D. Layser, Edward W. De Barbieri, Andrew J. Greenlee, Tracy A. Kaye & Blaine G. Saito, Mitigating Housing Instability During a Pandemic, 99 Or. L. Rev. 445, 460 (2021) (explaining that some protective measures taken by New York City’s Metropolitan Transit Authority have “eliminat[ed] the overnight shelter that some homeless people had come to rely on”); Clio Chang, For a Brief, Beautiful Moment, We Knew Where to Find a Bathroom in the Subway, Curbed (Feb. 17, 2022), https://www.curbed.com/2022/02/open-nyc-subway-mta-bathrooms.html [https://perma.cc/TWW4-SG5Q].[/footnote] While some of these spaces are now reopening, COVID-19’s longer-term effects on the homeless population will continue to reverberate.[footnote]Data collection efforts on the number of people experiencing homelessness were interrupted during the pandemic. See State of Homelessness: 2023 Edition, Nat’l All. to End Homelessness, https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness/[https://perma.cc/2AJW-6AUP] (last visited Sept. 30, 2023). But every indication suggests that “the pandemic has only made the homelessness crisis worse.” HUD, HUD Secretary Fudge on 2020 AHAR: Part 1—PIT Estimates of Homelessness in the U.S., YouTube, at 01:23 (Mar. 18, 2021), https://www.youtube.com/watch?v=qACOmm0uMKU (on file with the Columbia Law Review ).[/footnote] 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.[footnote]Abha Bhattarai & Rachel Siegel, Inflation Is Making Homelessness Worse, Wash. Post (July 3, 2022), https://www.washingtonpost.com/business/2022/07/03/inflation-homeless-rent-housing/ (on file with the Columbia Law Review ).[/footnote] Homelessness has become an “acute crisis.”[footnote]See German Lopez, Homeless in America, N.Y. Times: The Morning Newsl. (July 15, 2022), https://www.nytimes.com/2022/07/15/briefing/homelessness-america-housing-crisis.html (on file with the Columbia Law Review ).[/footnote] 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.[footnote]Aaron Elstein, No Place to Go, Crain’s N.Y. Bus., https://www.crainsnewyork.com/special-features/no-place-go-public-bathrooms-nyc (on file with the Columbia Law Review ) [hereinafter Elstein, No Place to Go] (last visited Sept. 7, 2023).[/footnote] 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.[footnote]See infra section I.A.1.[/footnote] And, in the words of one formerly homeless person, “[o]ne of the consequences of public urination for homeless people is humiliation.”[footnote]Corona, supra note 2 (internal quotation marks omitted) (quoting Ashley Belcher, an outreach and organizing specialist at a New York City nonprofit).[/footnote] 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.[footnote]For an excellent analysis of the availability and accessibility of bathrooms for those experiencing homelessness, see Ron S. Hochbaum, Bathrooms as a Homeless Rights Issue, 98 N.C. L. Rev. 205, 218–34 (2020) [hereinafter Hochbaum, Bathrooms and Homeless Rights]. Shelters often are at capacity, and those with availability often close during the daytime. Id. at 219. Further, many experiencing homelessness have valid reasons for avoiding shelters, such as overcrowding; restrictions on possessions, pets, and gender identity; triggers for mental illness; and restrictions on coming and going. See id. Municipality-operated bathrooms are too scarce to serve the public’s needs. See id. at 223. Many of these bathrooms are difficult to access due to, among other things, daytime-only hours, maintenance and sanitation issues, inadequate signage, inaccessible or inconvenient location, and closure during particular seasons. See id. at 227–28. Finally, private businesses often use “For Customers Only” bathroom policies, making their bathrooms inconsistently available to those experiencing homelessness. See id. at 219–20.[/footnote] 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.[footnote]See id. at 249–67. One scholar, Richard M. Weinmeyer, has taken calls for more public bathrooms a step further by arguing for a right to public toilets. See Richard M. Weinmeyer, Lavatories of Democracy: Recognizing a Right to Public Toilets Through International Human Rights and State Constitutional Law, 26 U. Pa. J. Const. L. (forthcoming 2024) (manuscript at 4) (on file with the Columbia Law Review ) (“This Article is the first of its kind to propose recognizing state constitutional rights to public bathrooms as a comprehensive first step towards addressing the United States’ public bathroom crisis.”). Others, such as Minneapolis City Council Member Jamal Osman, have called for portable toilets near homeless encampments. See Grace Birnstengel, Is Providing a Portable Toilet an Endorsement of a Homeless Encampment?, MPR News (Feb. 1, 2023), https://www.mprnews.org/story/2023/02/01/is-providing-a-portable-toilet-an-endorsement-of-a-homeless-encampment [https://perma.cc/7S7X-UVPA] (last updated Feb. 3, 2023).[/footnote] One potential stopgap solution has been discussed less frequently: banning customers-only bathroom policies.[footnote]See Hochbaum, Bathrooms and Homeless Rights, supra note 14, at 256–58; see also Taunya Lovell Banks, The Disappearing Public Toilet, 50 Seton Hall L. Rev. 1061, 1091 (2020) (“Stronger measures might include requiring all restaurants and bars to make their toilets available to the general public . . . .”); Ron Hochbaum, Opinion, Let’s Ban ‘For Customers Only’ Policies, S.F. Chron. (Apr. 25, 2018), https://www.sfchronicle.com/opinion/openforum/article/Let-s-ban-for-customers-only-policies-12865050.php (on file with the Columbia Law Review ) [hereinafter Hochbaum, Banning Customers-Only Policies].[/footnote] These bans would prevent businesses of public accommodation—such as restaurants, bars, and shops—from restricting bathroom access to paying customers only.[footnote]See Hochbaum, Banning Customers-Only Policies, supra note 16.[/footnote] While these bans have yet to find success in American cities,[footnote]See Banks, supra note 16, at 1091 (citing Amsterdam as the only city that has banned customers-only bathrooms).[/footnote] they could ease the burden on municipalities and prevent discriminatory exclusion.[footnote]See Hochbaum, Bathrooms and Homeless Rights, supra note 14, at 258–59.[/footnote] Scholars—most notably Professor Ron S. Hochbaum—have suggested these bans as a solution to the bathroom-access problem for those experiencing homelessness.[footnote]See supra notes 14, 16 and accompanying text.[/footnote] 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).[footnote]See infra section I.B.[/footnote] Such bans pose difficult legal and political questions. Most significantly, the recent Supreme Court case Cedar Point Nursery v. Hassid [footnote]See 141 S. Ct. 2063 (2021).[/footnote]—which expanded takings doctrine and made government regulation of access rights more difficult[footnote]See infra section II.A.[/footnote]—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.[footnote]See infra section III.A.[/footnote] While Cedar Point ostensibly limited a host of access-rights regulations, it carved out several exceptions (perhaps to avoid disturbing too much existing legislation).[footnote]See infra notes 205–206 and accompanying text.[/footnote] 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.[footnote]See infra section III.A.[/footnote] 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.”[footnote]See infra section III.B.[/footnote] 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.[footnote]See infra section III.B.[/footnote] 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.