Arkansas panel OKs criminalization of using bathrooms that do not match a person’s biological sex

An Arkansas bill that opponents called the most stringent legislative attempt so far to restrict the behavior of transgender individuals passed the Senate Judiciary Committee on Monday and will be considered by the full Senate.

Senate Bill 270 would make it a crime if an adult “knowingly exposes his or her sex organs to a minor of the opposite sex” in a public restroom or changing room. Adults who enter and remain in a facility that does not align with their gender assigned at birth would risk criminal charges of sexual indecency with a child if they are aware that minors are present.

“I understand that in this day and age, some people are led to believe that they were assigned the wrong gender, but the X and Y chromosomes still exist,” said Sen. John Payton (R-Wilburn), the bill’s sponsor.

The first two offenses would result in a misdemeanor, and the third onward would result in a Class D felony, Payton said.

Sen. Clarke Tucker (D-Little Rock) asked Payton if he was aware of any specific incidents in Arkansas that the proposed law would prevent from happening again, and Payton said he was not.

Five people spoke against SB 270, saying it would add to existing danger and discrimination that transgender Arkansans face.

“This would be the most extreme bathroom ban in the country,” said Sarah Everett, policy director with the American Civil Liberties Union of Arkansas. “There is no other state that has a criminal ban against transgender people using the restroom, whether or not a minor is present.”

Payton said he believed the policy is “reasonable,” but activist Jessica Disney of Conway said she did not see how it could “be even remotely enforceable.”

“Do I need to wear my identification papers or a special symbol for all to see when I enter the restroom to help people identify me or who I am?” Disney asked. “Should someone call the police on me? Am I supposed to allow an officer of the law to sexually assault me and feel me up so that I can be allowed to use the restroom?”

Who’s at risk

Payton did not use the word “transgender” or make any references to gender identity while describing SB 270 to the committee.

Tucker said the bill is really about transgender Arkansans. Payton disagreed.

“Believe it or not, there are some perverse heterosexuals who would enjoy hanging out in the wrong bathroom,” Payton said.

He repeated a statement heard often this legislative session about protecting children from sexual behavior and invasions of privacy. Other Republican legislators have said the same thing about House Bill 1156, which would require students’ gender assigned at birth to determine their access to school restrooms and locker rooms, and Senate Bill 43, which initially sought to regulate drag performances but was heavily amended to no longer mention the word “drag.”

SB 43 became law and is now Act 131, while House Bill 1156 will be reheard by the Senate Education Committee after being amended.

The conservative Family Council has spoken in favor of these bills, including SB 270. Communications director Luke McCoy expressed support for the bill at Tuesday’s meeting.

The bill initially made entering “the wrong restroom” a crime, Payton said, but he amended it to specify the crime as remaining in the facility if children are present.

The threshold for illegally remaining in the bathroom would be after a person is asked to leave, and a prosecutor would determine how much time constitutes breaking the law, Payton said. He added that people who leave or attempt to leave would not be subject to prosecution.

Tucker said it would likely be difficult for a person to comply with the policy if they are in the process of using the bathroom when they are asked to leave.

Payton said a lawyer might be able to use the defense that a bathroom stall is “a separate room.”

Tucker asked Payton if people suspected of a crime under SB 270 would have to expose themselves to prosecutors or a judge. Payton said this should not be necessary because a blood sample would reveal the chromosomes in a person’s DNA.

Everett disagreed and said exposure seemed like the only way to prove compliance or noncompliance.

“The bill sends the message that Arkansas thinks trans people are inherently dangerous,” Everett said.

Disney said she can empathize with the fact that “what you don’t understand can certainly be terrifying” because of harassment she has experienced.

“I’ve had these same scared individuals follow me around, screaming at me in public for just existing in that space,” Disney said. “I’ve been followed into a restroom at the beginning of my transition by both men and women seeing me and demanding that I not continue walking forward, or they would call the police on me or subject me to violence. I’ve had death threats sent to me and posted on the door of my own home because I am simply transgender.”

Who’s left out

Transgender men with traditionally masculine characteristics, such as full beards, would be forced to use women’s restrooms if SB 270 becomes law, Disney said.

“[They’re] often not part of the conversation because, well, it doesn’t spark as much fear as trans women do in the conversation,” she said. “But it is a concern, as many of these men would instantly have questions raised against them.”

Additionally, the bill could endanger cisgender individuals who do not appear to match traditional gender norms, Everett said.

“Not all women are Barbie dolls,” she said. “There are plenty of women who don’t have all of the same feminine characteristics, and there are women who for health reasons have had to have mastectomies or other issues that cause people to mistake them for men. Many of those women are already harassed while trying to use the women’s restroom.”

Sexual violence most often comes from people who know their victims, not from strangers, said Rumba Yambú, co-founder and executive director of the advocacy group Intransitive Arkansas. Yambú said working with survivors of sexual assault has shown that the perpetrators are often male relatives or church leaders, not transgender people in bathrooms.

“As Sen. Payton said, there are a lot of heterosexuals who are deviant, and we have a lot of those here in Arkansas,” Yambú said. “So if the purpose of this [bill] is to protect children even farther, I hope you take a step to that, and this bill is not that.”

Similarly, Ally Thomlinson of Disability Rights Arkansas said the Legislature should “cultivate real bills that can help protect children” instead of focusing on problems that don’t exist. 

“We do not have to waste any more precious time on pieces like this,” she said.

Allowing transgender people not to come out if they don’t want to is a form of suicide prevention, Thomlinson added, and the state should not try to be “governing common courtesy.”

“We should all be allowed to make our own choices up to a point, especially if they’re not harming anyone,” she said.

Possible financial repercussions

SB 270 would amend the existing portion of state law pertaining to sexual indecency with a child. The law currently lists several types of behavior from adults that would be a crime, including sexual contact or intercourse with a minor under 15 years old, as well as exposing themselves or coercing the minor into exposure.

“What this bill would do if it passes is put on par with those acts [simply] going into the bathroom, using the bathroom and leaving,” Tucker said.

Payton said he did not believe the bill would do that. Restrooms and changing rooms carry an expectation of “a state of undress” including the potential exposure of sex organs, he said.

“If you’re going to use the wrong facility, then you have a responsibility to make sure that the other people are out of the way and are not exposed [to you],” Payton said.

Haley Prentice said the “absolutely unnecessary and dangerous bill” will personally affect her as a transgender woman, especially since older people like her might need to use the restroom more often than younger people.

She added that Arkansas’ tourism industry would suffer from the proposed law.

“Arkansas is dependent upon tourism as one of its economic drivers,” Prentice said. “By having bills such as SB 270 become law, we’re going to put a message out to tourism and say, ‘We’re not a welcoming place here in Arkansas. We’re a hateful, bigoted state.’ As an Arkansan, I find that disgusting.”

Elected officials in North Carolina passed a law in 2016 requiring people to use public bathrooms that matched their gender assigned at birth. The state repealed the law in 2017 after it became clear that the policy would cost North Carolina’s economy more than $3.76 billion in business revenue by 2028.

Prentice urged the committee to consider the potential impact of SB 270 on the entirety of Arkansas, not just the transgender population.

“I wish some of you would see the light of this,” she said. “Several bills that are nothing more than virtue-signaling to some of you are doing damage.”

Tucker said he did not want Arkansas to “take an unprecedented step toward criminalizing being transgender in America.”

“We also have been consistently passing bills out of committees this session without giving them the scrutiny that they deserve, and this is just the latest example,” Tucker said.

He and Sen. Stephanie Flowers (D-Pine Bluff), the committee’s vice chair, cast the only “no” votes on the bill.

A 2017 bill would have restricted the use of restrooms in Arkansas public schools, colleges, and government buildings to a person’s gender assigned at birth. The bill did not include criminal charges for violators of the policy.

The bill was never taken up for debate, at the suggestion of Republican then-Gov. Asa Hutchinson in light of the North Carolina law from the previous year.