Arkansas House committee hears legislation restricting school bathroom use

Thirteen people spoke against an Arkansas bill that would restrict bathroom use in public schools based on gender assigned at birth in the House Education Committee on Thursday.

House Bill 1156 singles out transgender and gender-nonconforming youth and forces them to come out at school whether or not they want to do so, several witnesses said in speaking against the bill.

Five people, including two Conway school board members, spoke in favor of the bill, which also would require students to be grouped by gender assigned at birth in changing areas and on overnight school trips.

The bill mirrors a Conway School District policy adopted unanimously by its school board in October 2022.

Conway students with gender dysphoria have since become afraid to go to school because they feel unsafe, Faulkner County Coalition for Social Justice board president Stephanie Gray told the committee.

“This is not meant to make trans students feel discriminated against, and yet we are hearing over and over again that that is what trans students are feeling,” Gray said.

State Rep. Mary Bentley (R-Perryville), the bill’s sponsor, has said it is meant to protect students from bullying and assault in bathrooms. Conway school board members Linda Hargis and David Naylor Jr. introduced the bill to the committee alongside Bentley. All three said they believe schools need a policy that keeps boys out of girls’ bathrooms and girls out of boys’ bathrooms.

This is already the case, said Sarah Everett, policy director for the American Civil Liberties Union of Arkansas, because “trans girls are girls, and trans boys are boys.”

“People tend to think that you can tell when a person is trans, and that is not true,” Everett said. “There are kids in our schools right now who are trans, [and] maybe the administrators know, but their teachers and peers don’t know… They will likely suffer from discrimination, bullying and harassment if they are out, and this bill would out them.”

The committee unanimously adopted an amendment to the bill Thursday but did not vote on the bill because members need to know what fiscal impact the amendment will have on the state, chairman Rep. Brian Evans (R-Cabot) said.

According to the amendment, noncompliance with the policy would cost principals, superintendents and charter school administrators 15% of their salaries the following fiscal year.

The bill originally stated that public schools would lose 5% of their state funding if they did not comply with the bathroom policy. Bentley said superintendents in her district supported the bill overall but wanted a different incentive for compliance because budget cuts would negatively affect all students.

“We’re making the adults in the room be accountable,” Bentley said.

Hargis said she ran for her position last year because she believes “the social and political agendas that are in our classrooms don’t leave room for academics.”

Transgender people have the right to live their lives as they see fit, “but those rights stop at the door of that restroom or that locker room” for the sake of the right to privacy, especially for cisgender girls, Hargis said.

Bentley said five of the school districts she represents have expressed support for the bill, but Rep. Denise Garner (D-Fayetteville) said none of the districts she represents have expressed concern to her about transgender students’ bathroom use.

Garner said transgender students are more likely to be victims than perpetrators of bullying.

“This [bill] makes it sound like students with gender dysphoria are the problem, and that is not statistically correct,” she said. “Most gender-dysphoric students don’t want to go into regular bathrooms or are afraid to go into regular bathrooms.”

Accessibility concerns

The bill requires schools to “provide a reasonable accommodation” to anyone “unwilling or unable to use a multiple occupancy restroom or changing area” based on their biological sex, such as a single-occupancy gender-neutral restroom.

But schools do not have many single-occupancy restrooms, if they have any at all, Everett said, and students need permission to use them, which is a barrier to accessibility.

Conway activist Hypatia Meraviglia said several buildings in the Conway School District do not have single-occupancy restrooms. People with disabilities and families with small children also need these restrooms, and laws like House Bill 1156 would increase demand for limited resources, Meraviglia said.

“This will overload an already inadequate system and infringe on the rights of trans and disabled Arkansans,” Meraviglia said.

Rep. Vivian Flowers (D-Pine Bluff) asked Bentley if small school districts without single-occupancy restrooms or the money to build them might be at a disproportionate risk of punishment for noncompliance with the policy.

Bentley said this is not an issue, to her knowledge, since every school district in her mostly rural constituency already has single-occupancy bathrooms.

Hargis and Naylor mentioned an “overnight travel incident” involving a transgender student in Conway last year that motivated the school board to put forth its policies about bathrooms and overnight trips.

Clayton Crockett, a Faulkner County constituent of Bentley’s, spoke against the bill and said his daughter is the transgender student in question. The parents of another student were upset that their child shared a room with a transgender individual, and false rumors of sexual violence circulated, Crockett said.

His daughter’s mental health has deteriorated since then, he said.

“She feels discriminated against, she feels bullied, she feels singled out and she does not want to go to school,” he said. “… She is not able to be educated, which is what all of you have said [matters], and I’m not questioning your intention.”

Crockett’s daughter already used Conway High School’s single-occupancy restroom before it became a talking point and was comfortable being “under the radar” but now gets unwanted attention for her identity, he said.

Similarly, Marie Mainard O’Connell said her transgender child uses the only single-occupancy restroom in a Little Rock school but has to ask for permission every time because the bathroom is in the nurse’s office.

“My child has already experienced other students following them to restrooms to find out their ‘real gender,’” said O’Connell, pastor of Second Presbyterian Church in Little Rock. “This kind of social attack is hard to think about as a parent when you can do absolutely nothing about that moment.”

Lance LeVar, another witness against the bill, suggested that the state budget surplus be spent on remodeling school bathrooms and locker rooms to create more privacy for students regardless of sex or gender. Gray and O’Connell agreed, and all three said their opposition to the bill comes from their religious faiths.

Gray reminded legislators of the Arkansas Constitution passage that states, “No preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.”

“This bill is held together by discriminatory and ultimately Christian doctrine that does not belong in this Capitol building,” Gray said. “This is a waste of time and taxpayer dollars.”

Protection from violence

Witnesses for the bill said they are most concerned about cisgender men entering girls’ bathrooms and harassing or assaulting them.

“Whether or not a transgender person is more likely to sexually assault someone is irrelevant, because it makes it easier for anyone who would sexually assault someone to have access [to bathrooms],” said Courtney Roldan, a mother of two. “It’s time that we are proactive and not reactive.”

Allowing transgender people to use the bathroom that matches their gender sends a message that “we don’t vet who is going into those bathrooms,” said Toni Rose, director of the Arkansas Legislative Prayer Caucus, which Bentley chairs.

“I believe this bill is saying, ‘Look, grownups, figure this out,’” Rose said. “You’ve had years to figure this out and you haven’t done it yet.”

However, transgender people are more likely to be harassed in the bathrooms that match their biological sex than the ones that match their gender, said Jessica Disney and Judson Scanlon, both transgender individuals who grew up in Arkansas public schools.

“Unless you have experienced walking into a bathroom and having somebody tap you on the back and tell you that you’re in the wrong one when you are actually in the bathroom of your assigned gender, you do not understand the humiliation,” Scanlon said.

The bill’s supporters, including Bentley, repeatedly brought up a 2021 sexual assault in a school bathroom in Virginia that was rumored to have been perpetrated by a transgender student. This claim has been debunked, said Richelle Brittain, a transgender woman and licensed attorney.

Brittain added that some transgender people have their birth certificates altered to reflect their gender, as she did, and the original certificate then becomes inaccessible. Additionally, not all parents submit their children’s birth certificates to schools during enrollment.

“How are you going to deal with those kinds of situations?” Brittain said. “…You can’t enforce a law like this without bathroom police.”

Psychology graduate student and Little Rock activist Alison Guthrie agreed.

“[Under this law], administrators would become the gender, genital and birth certificate police,” she said.

Crockett said his daughter is applying to colleges outside Arkansas because she wants to leave the state after what she has experienced as a transgender student.

“If a white student were to say ‘I don’t feel comfortable sharing a bathroom with a non-white student,’ would you then discriminate against non-white students?” Crockett asked the committee. “This is what the whole Civil Rights Movement was about, and we’re fighting a new civil rights movement. [My daughter] just wants to be recognized as a human being.”

The committee will vote on the bill at Tuesday’s meeting if the fiscal impact report is complete by then, Evans said when the meeting adjourned.