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Arkansas bill restricting transgender adults’ bathroom use will be amended, returned to committee

Sen. Clarke Tucker (D-Little Rock) explains his opposition to Senate Bill 270 before the full Senate on March 1, 2023. The bill would make it a crime of sexual indecency with a child if a person enters and remains in a restroom that does not align with their biological sex when children are present.
Tess Vrbin
Arkansas Advocate
Sen. Clarke Tucker (D-Little Rock) explains his opposition to Senate Bill 270 before the full Senate on March 1, 2023. The bill would make it a crime of sexual indecency with a child if a person enters and remains in a restroom that does not align with their biological sex when children are present.

Arkansas legislators will amend a proposed law that 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.

Sen. John Payton (R-Wilburn), the sponsor of Senate Bill 270, pulled the bill from consideration on the Senate floor Wednesday in order to clarify some of the language.

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, the bill states.

The first two offenses would result in misdemeanor charges; the third onward would result in a Class D felony. People who leave or attempt to leave the bathroom when asked to do so would not be subject to prosecution, Payton said.

Opponents of the bill have called it the most extreme attempt in any state to pass a law restricting transgender individuals’ behavior.

“At some point you have to recognize the basic humanity of a person, and there’s nothing more human than going to the bathroom,” Sen. Clarke Tucker (D-Little Rock) told the Senate in an impassioned 15-minute speech. “This bill criminalizes that, and that’s cruel. I don’t believe it’s Sen. Payton’s intent to be cruel [and] I’m confident that it’s not, but whether it’s his intent or not, this criminalizes going to the bathroom as a transgender adult in Arkansas.”

The bill will be reheard by the Senate Judiciary Committee, which approved the bill Monday with dissent from Tucker and committee vice chair Sen. Stephanie Flowers (D-Pine Bluff). Five people, some of whom said they are transgender, spoke against the bill. A representative of the conservative Family Council spoke for it.

Tucker pointed out some flaws in the text of the bill, including a missing line, during Monday’s meeting. The phrase “if the offense is a felony,” pertaining to existing indecency laws, is incomplete on the second-to-last page of the bill.

The bill also provides an exception for parents accompanying their children under 7 years of age, but it does not clarify if a parent and child can enter and remain in a bathroom of the opposite sex with no consequences.

Payton said Wednesday that he would amend the bill in the House but later agreed to a request from Sen. Jimmy Hickey (R-Texarkana) to make the changes before the Senate votes to send the bill to the House. Hickey said he did not want to feel obligated to vote “no” or “present” on a bill about sexual indecency with a child.

Payton said the goal of the bill is to protect children from sexual behavior and invasions of privacy, an oft-repeated statement by Republican legislators sponsoring bills this session that activists have said are harmful to the transgender community. One such bill is House Bill 1156, which would require students’ gender assigned at birth to determine their access to school restrooms, locker rooms and where they stay on overnight school trips.

Similarly to Wednesday, Hickey pointed out a technicality in the text of HB 1156 and asked for an amendment during Senate floor debate on Feb. 16. The bill’s sponsor, Sen. Dan Sullivan (R-Jonesboro), pulled the bill from the floor. It has yet to be reheard by the Senate Education Committee.

Tucker said Senate Bill 270 is one of several bills that senators, the majority of whom are Republicans, have not ensured are written properly before passing them out of committee this session.

“Vetting bills is not partisan,” he said. “It requires good faith, mutual respect and hard work, and that’s it. Vetting bills should never be partisan, but it should especially not be partisan when one party has over 80% of the seats in a legislative body.”

He also criticized the bill’s language as “preposterous” and broad enough to criminalize cisgender as well as transgender individuals, such as if someone needs to use the bathroom or wash their hands in an emergency situation and children happen to be present.

“What is a bill that’s in this kind of shape doing on the floor of the Arkansas state Senate, and even worse, why does it stand such a high chance of passing?” Tucker said.

Privacy and potential harm

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. That 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 challenges to a similar North Carolina law from the previous year.

Payton said Wednesday that he and other legislators approached attorneys at the Bureau of Legislative Research “with this idea five or six years ago,” but they did not consider it fit to introduce until this year.

“I did not draft this bill [by] myself sitting in a bathroom stall,” Payton said. “I went to the lawyers at BLR.”

Restrooms and locker rooms come with an expectation of a state of undress, he said.

“If somebody flies a drone outside your bedroom window to take pictures or whatever, they’re not physically assaulting you, but they’re violating your privacy,” Payton said. “If my children or your children are in the right bathroom because they’re not confused about who they are, and somebody of the opposite sex comes in, their privacy is violated whether they’re washing their hands or not.”

Tucker asked Payton during Monday’s committee meeting if he was aware of any specific incidents in Arkansas that the proposed law would prevent from happening again. Payton said he was not, and Tucker brought this up on the Senate floor.

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

“What we’re proposing to add to that here is if you are in a bathroom with a child,” Tucker said, “not if you’re harming the child, not if you’re attempting or threatening to harm the child, not if you’re observing the child, not if you’re anywhere near the child.”

Tucker acknowledged the possibility that a child could be hurt in a bathroom but said the mere presence of other people will not do that.

“A child might get hurt on an interstate highway, but we don’t ban cars from being near other cars if there’s a child present on interstate highways,” Tucker said. “What we do ban are speeding or driving while intoxicated.”

The two main elements of a crime are a person’s mental state and a behavior that society wants to prevent, Tucker said, and Senate Bill 270 would add a person’s body parts to that list. The bill defines a person’s sex as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.”

Physical traits have nothing to do with whether a person is harming a child, and both prosecutors and existing laws recognize this, Tucker said.

“In order for a prosecutor to obtain a conviction under this crime as it’s written, they will have to prove beyond a reasonable doubt what a person’s genitals were when they were born,” he said. “Just let that sink in.”

Two other Democrats joined Tucker in speaking against the bill.

Senate Minority Leader Greg Leding (D-Fayetteville) said the bill is an attempt to control transgender people’s lives, a statement he also made about House Bill 1156 on Feb. 16.

“It’s as though we’re trying to make life so burdensome for trans Arkansans to simply exist in public spaces that maybe they won’t even try,” Leding said.

Sen. Fredrick Love (D-Mabelvale) said the bill makes “a bad assumption” that transgender people are guaranteed to hurt children, and he reminded the Senate that it was once illegal for Black Arkansans to share bathrooms with white Arkansans.

“We need to begin to accept everyone in our community,” Love said. “As a Christian, it is our job to love. It’s not our job to ostracize, and when we pass bills like this, what we’re doing is ostracizing a community that needs our love.”

Tess Vrbin is a reporter with the nonprofit, nonpartisan news organization Arkansas Advocate. It is part of the States Newsroom which is supported by grants and a coalition of readers and donors.