The most talked-about element of the hip new South End restaurant 28 Degrees has been the bathroom ''lounge," with its concrete floors, teak accents, rippling water/light feature in the ceiling, and three sinks shared -- in an ''Ally McBeal" sort of way -- by both genders.
Stop right there. A unisex restroom? New York can do it, Vegas can do it, but it turns out Boston can't, Ally be damned.
After receiving initial approval when they opened six months ago, owners Bill Emery and Carl Christian were told by city inspectors that such mingling, even if only during the hand-washing phase (the stalls themselves are segregated), violates state plumbing code. After losing an appeal to the Board of State Examiners of Plumbers and Gas Fitters in February, the restaurant went back to the drawing board, and two weeks ago it finished adding a mirrored wall and those telltale doors emblazoned with ''M" and ''W."
''It totally took us off balance," Emery said this week. ''We tried to make the whole point that every other major city in the US allows unisex washrooms."
Moreover, the slapdown has put the kibosh on similar plans Roger Berkowitz had for his new Legal's Test Kitchen restaurant, opening in June in the Seaport district. Berkowitz, inspired by a setup at the San Francisco restaurant the Slanted Door, was also going for washing togetherness, but his plans were nixed two weeks ago by inspectors who told him of the 28 Degrees case.
''I actually thought it was a neat look," Berkowitz said, adding that he planned a ''giant sink, like a meat-packing sink," with separate stalls marked women's and men's. ''We had roughed it out and then found out it wasn't going to be allowed."
State plumbing code says ''Toilet facilities for each sex, male and female, shall be provided" in places of assembly. It doesn't specifically address sinks, but Lisa Timberlake, a spokeswoman for Boston's Inspectional Services Department, said segregating only the commodes isn't enough. ''You can't have a toilet without a sink, period," she said. ''When people come out of the stalls they'll be meeting at the wash basins, and you need that wall, completely separating one [gender] from the other."
At 28 Degrees, Emery said he and Christian thought there was room for interpretation of what he called the code's vagaries. Harry Collings, executive director of the Boston Redevelopment Authority, and Councilor Michael Ross (who represents the Back Bay and Beacon Hill, not the South End) wrote letters to the state plumbing board backing the restaurant's appeal and praising the restroom's design. ''We've been open for six months, and we never had one customer complain that people of the opposite gender were washing their hands next to each other," Emery said. ''Not one."
Indeed, interviews with a half-dozen customers at 28 Degrees on Tuesday night turned up only disappointment that the restaurant had to put up the wall, which uses a one-way mirror to let those inside see out into the hallway but interrupts the view of the rippling ceiling. ''This is just outrageously puritanical and conservative," said Eddie Logan, 39, who moved in January from Boston to New York City, where restaurants such as the new Modern have communal sinks. ''This is just not an issue in more cosmopolitan areas."
Ross called the board's action ''pathetic," complaining that it didn't take into account the restaurant's community support. ''It's actions like these that give government a bad name," Ross said. ''A restaurant like 28 Degrees shouldn't be punished for its creativity."
As for Legal's, Berkowitz said planning was far enough along to require a change order in the construction at the new restaurant, which will feature a more casual vibe than the chain's standard. Ed Mitchell, Legal's director of construction, described what is going to be installed instead -- a sink, mirror, and hand dryer in each stall -- as nonetheless ''pretty unique." Each of the stalls is larger than normal, Mitchell said.
Other Boston restaurants have poked holes in the bathroom wall separating genders but haven't knocked them down altogether. At 33 Restaurant & Lounge, a man standing at one of the sinks can barely see -- through some glowing tubes -- the hands of a woman on the other side of a wall. And plenty of restaurants here have small bathrooms open to either gender, but only one person at a time, so nobody rubs elbows.
Elsewhere, unisex bathrooms can become a focal point, in a manner of speaking. Near the entrance at China Grill in the Mandalay Bay Resort & Casino in Las Vegas, a dozen 12-foot-tall translucent stalls reveal the shadows of the people inside, and each has a small flat-screen TV playing videos. Reservationist Dora Landa said people come in just to look at the bathrooms. Paul Frumkin, deputy managing editor of Nation's Restaurant News, said he'd heard of many unisex bathrooms but never any controversy. ''You say it's banned in Boston?" Frumkin asked.
In a word, yes.
''Everybody seems to be thinking this is the new fad -- in California, I guess, on the West Coast," said the ISD's Timberlake. As for Boston, though, ''not today. Twenty years from now, who knows?"
Some, certainly, would rather things stay separated. Tanya Steel, editor in chief of Epicurious, a website devoted to cooking and restaurant trends, included unisex bathrooms on her list of ''Top 10 Worst Restaurant Trends of 2005." Men might not mind the setup, she said, but women do -- especially if they have to share stalls, but even if it's just the sinks. ''Few women want to come out of the bathroom, smoothing down their clothes and fixing their hair, to be greeted by a man standing there washing up," she said.
Kim Mustin, 38, who is a regular patron at 28 Degrees, said she misses the communal sinks but wouldn't want the gender mixing to go much further. ''If you shared an actual stall and the men left the toilet seat up," she said, that should not merely be against code. ''It should be unconstitutional."