Arkansas school bathroom use bill will be amended, sent back to committee

The bill that would restrict bathroom use in Arkansas public schools based on students’ gender assigned at birth will be amended and returned to the Senate Education Committee, Senate sponsor Sen. Dan Sullivan (R-Jonesboro) said Thursday.

House Bill 1156 was expected to receive a vote from the full Senate a day after passing the Senate Education Committee, but Sullivan pulled the bill from consideration after some discussion over a technicality.

The proposed law applies to multiple-occupancy restrooms and locker rooms, as well as rooms for students on overnight trips. It 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.

Sen. Jimmy Hickey (R-Texarkana) said he supported the bill but had a technical question about the language pertaining to overnight trips, which states that a student “is required to share sleeping quarters with a member of the same sex.”

Hickey asked if it could be read as not allowing students to stay in rooms by themselves. Sullivan initially said he did not read it that way, but he later agreed to make the amendment after a separate conversation with Hickey.

“We’ll have the attorneys review that the language is specific to allow one person in a room,” Sullivan said in an interview.

The amended bill will have to pass the Senate Education Committee again before the full Senate votes on it. If approved, it will go back to the House, which it passed Feb. 1 with a party-line vote.

Sullivan recently took over Senate sponsorship of the bill from Sen. Gary Stubblefield (R-Branch). The bill’s primary sponsor is Rep. Mary Bentley (R-Perryville), who has repeatedly said it will protect children’s privacy and keep male predators out of girls’ bathrooms and changing areas.

Opponents of the bill have said it would make transgender youth more vulnerable to bullying and harassment than they already are due to stigma against their identities.

Representatives from Arkansas Advocates for Children and Families, the American Civil Liberties Union of Arkansas and Disability Rights Arkansas, as well as former educators, parents of transgender students and LGBTQ-rights activists have all spoken against House Bill 1156 in both the Senate and House Education Committees.

Senate Minority Leader Greg Leding (D-Fayetteville) voted against the bill in Wednesday’s committee meeting and spoke against it on the Senate floor Thursday. He said supporters of legislation like House Bill 1156 use the privacy and safety of children as a talking point to win support.

“As acceptance of the trans community has grown in recent years, we’ve begun to see more attempts to control and limit their lives outside their homes,” Leding said.

He said the bill would hurt children instead of protecting them, a statement he also made in opposition to Senate Bill 43 when the chamber voted on it in January.

Senate Bill 43, also sponsored by Bentley and Stubblefield, initially would have outlawed drag performances from being held within a certain distance of places children frequent. It has since been heavily amended to restrict “adult-oriented performances” and no longer mentions the word “drag.”

Enforcement questions

Superintendents, principals, charter school administrators or teachers would be fined at least $1,000 if they are found to violate the bathroom policy under HB 1156, 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 Bentley and Sullivan on Wednesday how schools would enforce the policy. Bentley and Sullivan responded that each school would determine its own enforcement methods.

Sullivan repeated this Thursday but added that the Arkansas Department of Education or the nine-member Board of Education within it should provide guidance for enforcement, in response to a question from Senate President Pro Tempore Bart Hester (R-Cave Springs) about how schools could determine whether noncompliance was deliberate or accidental.

Sullivan said in an interview that the bill allows a committee at “whatever level” to investigate claims of noncompliance with the policy.

“One could use as a defense, ‘It was accidental,’ [and] that committee could determine whether that is true or untrue,” he said.

The text of the bill does not mention the Department of Education, the state Board of Education or any other supervisory entity.

Sullivan mentioned an “incident” involving a transgender student on an overnight trip that motivated the local school board to adopt a district-wide policy that inspired House Bill 1156.

The adults in charge of the trip knew that the transgender student was sharing a room with another student of the same gender, not the same sex assigned at birth, Sullivan said.

Clayton Crockett, the father of the Conway High School student in question, told the House Education Committee that other students had not complained about the room-sharing arrangement, but other parents had. His daughter’s mental health has since deteriorated due to unwanted scrutiny and false rumors, he said.

“She feels discriminated against, she feels bullied, she feels singled out and she does not want to go to school,” Crockett said on Jan. 26.

Studies have shown that transgender youth are already at risk of bullying, sexual violence and suicide, and policies like House Bill 1156 increase those risks, Leding said on the Senate floor.

“I ask that you vote no, or don’t vote, and you can truthfully tell people that you want more time to look at data, to talk to trans kids and their families, to talk to students before you make a decision on this bill,” Leding said.