BABIES in Every Public Federal Building!

BABIES in Every Public Federal Building!

Siyu Qian*

Former President Obama’s love of babies is no surprise to anyone.  A simple search on Google of “Obama with babies” reveals endless images of him holding babies (and one equally cute puppy).  His love of babies ultimately led to his signing of the conveniently named Bathrooms Accessible in Every Situation—“BABIES”—Act.  Bathrooms Accessible in Every Situation (BABIES) Act, Pub. L. No. 114-235, 130 Stat. 964 (2016).

The BABIES Act, sponsored by Rep. David Cicilline of Rhode Island, was introduced in the House of Representatives on April 29, 2016.  Caroline Bologna, Men’s Restrooms Will Now Require Baby Changing Stations. Thanks, Obama!, Huffington Post (October 12, 2016), http://www.huffingtonpost.com/entry/mens-restrooms-will-now-require-baby-changing-stations-thanks-obama_us_57fbe25ee4b068ecb5e0d3b0.  The bill passed both the House and Senate with bipartisan support.  H.R. 5147, 114th Cong. (2016).  The former President signed the bill after only four days of consideration, and on October 17, 2016, H.R. 5147 came into this world as BABIES Act.  Id.

The BABIES Act requires all public buildings constructed or acquired by the Administrator of General Services to be equipped with baby changing facilities on every floor.  See BABIES Act, Pub. L. 114-235, § 2, 130 Stat. 964 (2016).  The Act does not differentiate between the requirements for men and women’s restrooms.  Id.  The Act does exclude certain restrooms from having changing facilities.  Id.  The BABIES Act will only apply to bathrooms for public use.  Id.  If a building is public, but the bathroom is not, there is no requirement for a baby changing facility in that bathroom.  Id.  The changing facility will not be required where there is “clear and conspicuous signage indicating where a restroom with a baby changing table is located on the same floor of such public building.”  Id.  The Act does not define “clear and conspicuous.”  See id.  If problems do arise, it could be with whether a sign qualifies as “clear and conspicuous.”  Other exceptions include when the cost of installing a baby changing facility is unreasonable or when the building is not subject to alterations.  Id.

Adding changing facilities in men’s restrooms is not a cost-free endeavor.  According to the Congressional Budget Office Cost Estimate report, implementing BABIES Act would cost less than $500,000 annually.  Cost Estimate: H.R. 5147, Cong. Budget Off. (Sept. 20, 2016), https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/hr5147.pdf.  The annual cost includes installation of changing facilities in up to ten federal facilities per year.  Id. The installations will be required for “all new construction and to existing buildings where major repairs or alterations to restrooms are being undertaken.”  Id.

Rep. Cicilline drafted BABIES Act because it is a “common sense proposal that makes government buildings more welcoming for families and helps promote good public health.”  Bologna, supra.  Though Rep. Cicilline first introduced the Act, it is by no means solely his brainchild.  Actor Ashton Kutcher first brought the issue to national attention when, while out with his young daughter, Kutcher encountered a lack of changing stations in men’s public restrooms.  Caroline Bologna, Ashton Kutcher Bemoans Lack of Diaper Changing Tables in Men’s Room, Huffington Post (Mar. 10, 2015, 12:12 PM), http://www.huffingtonpost.com/2015/03/10/ashton-kutcher-diaper-changing-tables_n_6838778.html.  Though Kutcher was not the first to experience this problem, his experience catapulted the issue to fame.  His Change.org petition received over 50,000 signatures in less than a week.  Caroline Bologna, Ashton Kutcher Continues Fight for Dads’ Rights to Change Diapers with Online Petition, Huffington Post (Mar. 25, 2015, 9:25 AM), http://www.huffingtonpost.com/2015/03/25/ashton-kutcher-changeorg-petition-changing-tables_n_6933100.html.  The support is partly based on fathers who want to be more involved in the child care process.  Id.

The issue eventually reached legislators in California, where a bill was passed that would require changing stations in men’s public restrooms.  Governor Jerry Brown, however, vetoed the bill despite bipartisan support.  Id.  Nevertheless, there is still hope for fathers.  Although legislatures are lagging in instituting change, businesses are already implementing the change.  For example, Target “made changing tables a standard feature in both [their] men’s and women’s restrooms for more than 25 years.”  Id.  In the event that a changing table is unavailable, Target will provide a private room for fathers to change diapers.  Id.  New York State Senator Brad Hoylman introduced a bill to the state senate, which would require any public restroom with a changing station in women’s restrooms to have one in the men’s counterpart.  Caroline Bologna, New York State Senator Introduces Bill to Require Diaper Changing Tables in Men’s Restrooms, Huffington Post (Apr. 17, 2015, 5:27 PM), http://www.huffingtonpost.com/2015/04/17/senator-brad-hoylman-changing-tables_n_7086856.html.  New York has yet to enact the bill.  Id.

Rep. Cicilline (and many fathers) would agree that changing diapers on sinks and the floor of the men’s bathroom is a public health risk.  For single fathers, it may be their only choice.  As shown by the thirty-four nays in the House of Representatives, not all agree with the new requirement.  One man proposed that a changing facility should be in the men’s restroom only if there is no way to provide for a “parents’ room.”  Darrell Milton, The Reason Why You Shouldn’t Put Baby Change Tables in Men’s Restrooms, Mod. Father Online (Mar. 18, 2015), https://modernfatheronline.com/2015/03/18/the-reason-why-you-shouldnt-put-baby-change-tables-in-mens-restrooms-bathrooms-toilets/.  The “parents’ room” is a room where mothers and fathers can go to perform parental duties, such as feeding the child or changing a diaper.  Id.  Even though the author did not fully condone installing changing facilities in men’s restrooms, he did acknowledge that fathers should be active in caring for the child.  Other men in the comments section reject the whole idea, stating, “woman [sic] should change diapers.  Its [sic] a female thing . . . . Thats [sic] just the way it is.”  djdjdjd, Comment to The Reason Why You Shouldn’t Put Baby Change Tables in Men’s Restrooms, Mod. Father Online (May 23, 2016, 8:18 AM), https://modernfatheronline.com/2015/03/18/the-reason-why-you-shouldnt-put-baby-change-tables-in-mens-restrooms-bathrooms-toilets/.

Despite some of these objections, the bill was enacted into law.  Though the bill only applies to publicly accessible restrooms in public federal buildings, some businesses are starting to incorporate changing facilities in men’s restrooms.  This legislation has yet to be challenged, but it is a push in the direction of giving parents equal opportunity to provide for child care.

*Selena Qian is a second-year law student at University of Baltimore School of Law, where she is a staff editor for Law Review. She will be interning with the Honorable Judge Nazarian in the Court of Special Appeals of Maryland in the spring.