In a split vote, Montclair requires single-person bathrooms be gender-neutral
By LOUIS C. HOCHMAN
hochman@montclairlocal.news
Montclair’s Township Council has passed what its first openly gay member is calling a “Historic LGBTQ+ Equality Agenda.”
But a measure to require that most single-user bathrooms in the township be gender-neutral was approved over the objections from three council members — splitting a council that was unanimous in its support of other ordinances to extend anti-discrimination practices. Some said they thought businesses and the council should have had more time to consider the impact; one said she’d consider the measure if it went even further.
The rule is meant to provide safe and inclusive facilities for transgender and nonbinary individuals whose gender expression or identity may not fit the more typical “men’s” and “women’s” labels on many bathrooms. Every day a business isn’t compliant could result in a separate violation, with fines of up to $2,000 each.
Before the night was out, Councilman Peter Yacobellis — author of the three ordinances, as well as a resolution affirming support for New Jersey’s eight-year-old ban on so-called “conversion” therapy for minors — had released a statement, saying the votes sent a message that Montclair’s LGBTQ+ residents should “feel safe and at home in Montclair with a government that has their backs.” He specifically thanked Mayor Sean Spiller and fellow Township Council members Bob Russo and Lori Price Abrams for working with him on the legislation.
Also at the ready were prepared statements of support from Christian Fuscarino, executive director of Garden State Equality (a group where Yacobellis formerly worked as finance director), and Montclair resident Celeste Fiore, founder and chair of the recently formed Trans Affirming Alliance.
Two of the three ordinances passed without dispute at that June 22 meeting. One extends the township’s existing protections against discrimination based on sex or orientation to also cover gender identity and expression. The other creates similar protections for third-party bidding and contracts. “This ensures that we don’t spend your tax dollars with any entity who themselves don’t protect their employees on this basis,” Yacobellis wrote.
It was the bathroom measure that saw friction. The ordinance still passed — with Yacobellis, Spiller, Price Abrams and Russo voting for it. Councilman David Cummings, Councilwoman Robin Schlager and Deputy Mayor Bill Hurlock opposed it.
The ordinance requires businesses — including offices, retail stores and restaurants — as well as municipal facilities and other places of public accommodation to mark any single-occupancy bathroom as gender-neutral. It wouldn’t apply to houses of worship. It also says a business can get a waiver, if the township’s construction official is satisfied the change would conflict with plumbing codes or state laws.
The ordinance doesn’t require businesses to institute single-occupancy bathrooms if they don’t already have them, or affect multiple-occupancy bathrooms.
Hurlock told Montclair Local last week he wasn’t eager to add another burden to businesses after the difficulties of the coronavirus pandemic — “even if it’s just money for signs.” And he said council members only had three days’ notice before a first reading of the ordinances earlier this month, giving little time for the members or the business community to properly consider it. Hurlock said given more time and a sense from the business community that it wouldn’t cause problems, he might have considered voting for the ordinance.
When the ordinance was introduced for a first reading in early June, Cummings also said that the idea of unisex bathrooms first needed more public discourse and a community education outreach effort.
“I think we all support the intent of this ordinance,” Cummings said by email last week. “My concern is timing and really making sure we are thorough when we create changes like this. I think we needed more time, not to stall, but to really vet as a group.”
He said the ordinance “will impact everyone, from adults to children.”
“I know of incidents that occurred at [Montclair High School] when the schools created unisex bathrooms, and most of them were the direct result of the failure to educate middle school students entering high school," he said.
On top of that, Hurlock said, “a lot of the stuff we’re dealing with now is national issues — the right pew, but the wrong church or synagogue or mosque. It’s not the purview of the Montclair Township Council.”
For the same reason, he said, he abstained on the measure to support New Jersey’s ban on youth “conversion” therapy, a practice intended to change a person’s sexual identity (Cummings also abstained on that measure). Hurlock said he broadly dislikes the council’s weighing in on state or national matters it can’t control.
“I’m not even getting into the merits of the proposition, pro or con,” he said. Cummings said he and Hurlock are “aligned that our role in a nonpartisan form of government should be to focus on matters we can enforce and monitor.”
Yacobellis said so far, he’s sent communication to 437 businesses about the new rule, and “we will continue to cascade that information” through community leaders and township media. In that time, he said, he hasn’t gotten pushback — just questions from businesses seeking clarifications.
Jason Gleason, executive director of the Montclair Center Business Improvement District that represents hundreds of downtown businesses, said much the same. Some business owners had questions on the ordinance. Many, he said, were already in compliance because of their own voluntary practices.
“People have to have a safe place to use the restroom,” Gleason said. “Maybe that’s just my opinion, but I think that’s just a reasonable notion to advance in 2021.”
Paul Giordano, owner of Sweet Home Montclair and president of the Upper Montclair Business Association, said he hadn’t spoken to all of his members, but the ones he has are comfortable with the idea of gender-neutral bathrooms. But they could have used more of a heads-up and more details on the timeline and implementation before the measure moved ahead, he said.
“They want to be compliant. They want to make sure they have enough time to get it done,” Giordano said.
Zina Floyd, president of the South End Village Association, said she hadn’t spoken to fellow business owners in the district yet, but she saw the requirement to make any single-occupancy bathrooms gender-neutral as an easy one to meet — and an important one to embrace.
“I can only speak for myself — I think it’s absolutely essential that we are open and supportive to everybody,” she said.
And while she said some matters need lengthy discussion — and respected the position of council members calling for it — she didn’t see the bathroom ordinance as one of them.
“If something is more inclusive, I don’t think that should require much discussion,” she said.
The ordinance gives businesses 180 days to comply. That clock starts ticking 20 days after the vote, under a state requirement governing when ordinances can take effect.
Yacobellis rejected the idea that it’s not the council’s place to take on broader issues — pointing to laws in Hoboken and Princeton that similarly require single-occupancy bathrooms in private businesses to be gender-neutral.
“This is very much a function of local government. That argument rings hollow completely,” Yacobellis said. Russo agreed, saying local officials “have a responsibility to speak out on issues of concern to our various, diverse constituencies, and call on our national and state legislative representatives to pass laws to help our residents and taxpayers.” He noted his own support for Montclair resident and U.S. Rep. Mikie Sherrill’s push to repeal the $10,000 state and local tax deduction cap for federal taxes.
Schlager, for her part, said she worried the bathroom rule was inconsistent.
“I don’t understand the difference between a single stall and a bathroom that has three toilets,” she told Montclair Local. “A bathroom is a bathroom is a bathroom.”
And she wasn’t comfortable with the exemptions, such as for houses of worship.
“I just felt that it’s all or nothing,” Schlager said. “Otherwise, it didn’t make sense to me.”
Schlager said she might have considered a more expansive ordinance. The others, approved unanimously, “seemed like they were the right things to do, in my beliefs as a person, not just a council person,” she said.
Yacobellis said if Schlager is “genuinely open to discussing a more expansive law that would include multiuser restroom and changing facilities, that’s a conversation I’m willing to have and would have at any time we’ve discussed the issue in the last year.”
Yacobellis has previously said the package of ordinances was crafted in part to improve Montclair’s rating by the Human Rights Campaign. Since 2018, the township has been one of 12 New Jersey communities that voluntarily take part in the LGBTQ+ advocacy organization’s scorecard. Among the measures where it had fallen short: Until now, Montclair didn’t have a rule regarding anti-discrimination practices for contractors, or protections against “conversion” therapy.
The therapy resolution is largely symbolic, and has no enforcement mechanism. Then-Gov. Chris Christie signed a bill banning the practice in 2013, citing the mental health hazards of trying to change a child’s orientation.
Under recommendations from Yacobellis, Russo and Price Abrams, the township staff also recently made administrative changes — naming its affirmative action officer to the position of official liaison to the LGBTQ+ community, and updating Montclair’s equal opportunity policy to list protections for employees based on gender identity and expression. Those changes did not require a council vote.
Garden State Equality, reached by email last week, echoed the statement it had provided for Yacobellis’ own press release. Fuscarino said that while New Jersey “is one of the most pro-equality states in the nation … it’s still important for municipal governments to demonstrate their commitment to their LGBTQ+ residents through ordinances and resolutions like the ones enacted [June 22].”
An earlier version of this story used an incorrect first name for Councilman Bob Russo.