Bill restricting school bathroom use heads to Arkansas Senate

A proposed law to restrict bathroom use in public schools based on students’ sex assigned at birth passed the Senate Education Committee on Wednesday and will head to the Senate, the only remaining hurdle before going to the governor’s desk.

House Bill 1156 applies to multiple-occupancy restrooms and locker rooms, as well as rooms for students on overnight trips. The bill has faced much opposition from LGBTQ-rights activists and families of transgender students, and it has moved through the Legislature with party-line votes. It passed the House of Representatives on Feb. 1, a day after passing the House Education Committee.

The Senate Education Committee’s only Democrats, Minority Leader Greg Leding (D-Fayetteville) and Minority Whip Linda Chesterfield (D-Little Rock), voted against the bill.

Rep. Mary Bentley (R-Perryville), the bill’s primary sponsor, has said repeatedly that the policy would protect all students’ privacy. She brought up a since-debunked story about a 2021 sexual assault in a school bathroom in Virginia that was rumored to have been perpetrated by a transgender student.

The bill would particularly protect students who are survivors of sexual abuse, Bentley said.

“Letting males into females’ private facilities based on their belief about their gender deprives girls, especially the many who have suffered sex abuse, of essential privacy rights,” she said.

The five people that spoke against the bill Wednesday all previously spoke against it before the House Education Committee on Jan. 26.

“If this bill becomes law, it would make it impossible for transgender children to go about their daily lives like other students, and it opens the door to abuse, mistreatment and more,” said Olivia Gardner, director of education policy for Arkansas Advocates for Children and Families.

Ally Thomlinson, director of the Arkansas Alliance for Disability Advocacy, said House Bill 1156 is an example of “hate [being] pushed out of this Capitol” and the committee should focus on other issues.

“We have children that need our help right now, and this is not a real issue,” Thomlinson said. “This is an opinion piece.”

Two people representing conservative groups spoke for the bill: Erin Hogan, head of government relations for the Family Council, and Ginny Lauren Dowden, the Washington County chair of Moms for Liberty and a commentator with the conservative TV outlet Conduit News.

Enforcement and accountability

Superintendents, principals, charter school administrators or teachers would be fined at least $1,000 if they are found to violate the policy, according to an amendment to the bill adopted Jan. 30.

The bill originally stated that public schools would lose 5% of their state funding if they did not comply with the bathroom policy. A subsequent amendment stated that noncompliance would cost principals, superintendents and charter school administrators 15% of their salaries the following fiscal year.

Leding asked how school administrators would know a student’s sex assigned at birth, especially if a student is new to the school.

“The school will have training for their staff on how to measure this and how to mandate it, and all schools are different, and all schools will have a different approach,” said Sen. Dan Sullivan (R-Jonesboro), the bill’s Senate sponsor.

Leding asked for an example of enforcement “to the extent that it could be done in a practical way that is respectful to people.”

Sullivan repeated that enforcement is up to individual schools. He said the policy could be revisited in a future legislative session but added that he didn’t think it would be necessary.

The bill also 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.

Not all schools have enough single-occupancy restrooms or the resources to build new ones, Sarah Everett, policy director with the American Civil Liberties Union of Arkansas, said while speaking against the bill.

Leding said the policy would create a legal quandary if a school tries to follow the law while children and their families “understandably and justifiably refuse to comply.”

Everett said it is unfair to place a legal mandate on schools without providing any guidance in the legislation.

She also shared an anecdote about a transgender girl who continued using the boys’ bathroom at school while transitioning.

“The boys told her she wasn’t allowed to be in there because she’s not a boy and they were going to tell the teacher on her,” Everett said. “This is the kind of thing that’s going to come up in schools [under this policy].”

Potential unconstitutionality

Students with gender dysphoria already used gender-neutral restrooms in the Conway School District before the school board enacted the same bathroom policy in October 2022. The public response to the policy made it “almost impossible” for the Conway School District to focus on education, Bentley said, so a statewide bill should prevent other districts from being similarly “inundated” with public records requests and the possibility of lawsuits.

Chesterfield asked Bentley why people who oppose the bill have called it unconstitutional.

“I have absolutely no idea,” Bentley said.

Bentley and Hogan cited a December 2022 ruling from the 11th U.S. Circuit Court of Appeals as proof of the bill’s constitutionality. The court upheld the same bathroom policy enacted by a school board in St. Johns County, Florida, after a transgender boy sued the school board in 2020 for requiring him to use the girls’ bathroom.

However, the 4th Circuit and 7th Circuit federal courts of appeals have struck down similar laws, Everett told the committee.

The American Medical Association “opposes policies preventing transgender individuals from accessing basic human services and public facilities in line with one’s gender identity, including, but not limited to, the use of restrooms,” activist Alison Guthrie read in a statement to the committee.

Legislators should not believe that being elected policymakers “somehow makes them an authority on over 175 years of medical and scientific knowledge, research and expertise,” Guthrie said.

“You don’t have to be big on trans rights or even understand the concept of gender identity to understand that a world in which we police children’s genitals is probably worse for children than a world in which a trans girl occasionally uses the girls’ restroom,” Guthrie said.

“An adult issue”

Lance LeVar said he has 20 years of experience in education, including as a school principal, and has seen transgender students struggle from bullying due to their identities.

Believing in binary concepts does not make them real, LeVar said.

“This is an adult issue that kids know how to handle,” he said. “We’re projecting our concerns and our fears and our misunderstandings onto the youth instead of listening.”

Bentley said the bill has the support of all the school superintendents in her district — all of Perry County and parts of Faulkner, Saline and Yell counties — and she believes the bill will not make transgender children vulnerable to bullying.

Sen. Breanne Davis (R-Russellville) said she was “actually quite offended” to be seen as opposed to the safety of transgender students because she supports the bill. She said she believes it does not single out transgender children.

“If we’re allowing kids to change their gender and pronouns multiple times throughout the school year and then allow them in the locker room with my middle school child, I have a problem with that,” she said.

Davis made the motion to pass the bill, and Leding said he would vote against it.

“This is going to be much more disruptive than just allowing the situation to exist as is and treating people with respect and dignity,” Leding said.