Amended bill restricting transgender adults’ bathroom use will return to Arkansas Senate

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 passed the Senate Judiciary Committee on Monday after being amended.

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, Senate Bill 270 states.

Opponents of the bill have called it the most extreme legislative attempt in any state to restrict the behavior of transgender individuals. Two people spoke against the bill before the Judiciary Committee on Monday, in addition to five a week earlier.

“Passing laws to address issues that do not exist is typically done either as a dog-whistle or out of irrational fear,” said Clint Schnekloth, pastor of Good Shepherd Lutheran Church in Fayetteville. “Neither is good leadership or good governance.”

The bill passed the committee last week with dissent from Sens. Clarke Tucker (D-Little Rock) and Stephanie Flowers (D-Pine Bluff), who were again the only members to vote against the bill on Monday.

The Senate took up the bill for discussion Wednesday, but lead sponsor Sen. John Payton (R-Wilburn) pulled the bill from the floor with the intent to fix some technical errors pointed out by both Tucker and Sen. Jimmy Hickey (R-Texarkana).

Senate Bill 270 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 added a missing phrase to the text of the bill but did not add clarity to the exception because he did not want to broaden the scope of the bill, though he would have preferred broader legislation, he said.

“I would love for this bill to go much further,” Payton said. “To me, this bill is a huge compromise because [it’s] only trying to control the situation when minors are present.”

He further amended the bill to make every offense a Class C misdemeanor, he told the committee. Originally, the first two offenses would have resulted in misdemeanor charges and the third onward would have resulted in a Class D felony.

Tucker asked Payton last week 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.

Schnekloth told the committee he stopped at two public restrooms on his way to Little Rock from Fayetteville, and at one of them, a father brought his young daughter into the women’s restroom because Schnekloth was in the men’s room. Schnekloth said he mentioned this to highlight the exception in the bill and the ability of adults to make judgment calls with children’s safety in mind.

Senate Bill 270 “lacks basic civility” by limiting transgender adults’ access to public restrooms, Schnekloth said.

“It’s Big Brother intruding on what we all know how to handle ourselves,” he said.

Existing and “hypothetical” standards

Tucker reprised remarks he made last week that the bill would a a person’s body parts to the two main elements of a crime: a person’s mental state and a behavior society wants to prevent. 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.”

Tucker asked Bob McMahan, the state prosecutor coordinator, if any existing laws are based on physical traits. McMahan said there are none.

Entering and remaining on private property could result in burglary or trespassing charges, but there are no existing crimes for entering and remaining on public property, McMahan said.

Proof of a person’s “anatomy and genetics existing at the time of birth” would be at least 18 years old by the time someone is prosecuted under Senate Bill 270, Tucker said, so he asked how prosecutors could obtain that information.

McMahan said they could try to obtain medical records via a search warrant or subpoena, though medical privacy standards might be an obstacle, or a blood test to determine a person’s chromosomes.

It would be up to an individual prosecutor whether a person violates the law by washing their hands and leaving or by being inside a closed and locked stall if children happen to be anywhere else in the bathroom, McMahan said in response to Tucker’s questions.

“We can hypothetical this to death, but it really depends on the facts of the case,” McMahan said.

Payton added that a man who enters a women’s locker room and does not expose himself but is “just there seeing what he wants to see” is still guilty of the crime of voyeurism, which is not something only transgender people are capable of committing.

People who leave or attempt to leave the bathroom when asked to do so would not be subject to prosecution, Payton said last week.

“Prosecution under this law will be difficult, and it’ll be rare,” he said Monday. “With any discretion from a prosecutor, it’ll only be in the most grievous circumstances where somebody refused common courtesy to those of us who would prefer that our kids and grandkids not be exposed to certain elements.”

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.

A person’s genitalia at birth do not determine whether someone behaves in a predatory manner, Tucker said.

He asked McMahan and his staff attorney Ginger Kimes if, speaking generally, Arkansas has existing laws that would prosecute someone who enters a bathroom with the intent to harm another person.

Kimes said those laws do exist.

Religious objections

The two witnesses against SB 270 on Monday cited their Christianity as part of their opposition. Schnekloth said several members of his congregation are transgender and he wanted to ask the Legislature to leave them in peace.

He said he agreed with Tucker that state law should not criminalize an aspect of a person’s body, which he called “problematic and genuinely strange and weird.”

Sen. Terry Rice (R-Waldron) asked Schnekloth if people of the same faith can have different interpretations of it. Schnekloth said he believed so.

“I kept my statements related to good governance and what actually treats all Arkansans with respect and value, and legislation like this doesn’t,” Schnekloth said. “I don’t think that’s really a subjective argument. I think that’s just going to be plain old fact.”

Schnekloth and the other witness, Blake Tierney, said the committee should vote against the bill if they mean it when they say they want to protect children from harm. Republican legislators have repeated this goal several times this session while promoting bills that activists have said are harmful to the transgender community.

Tierney said he is a Christian, a gay man and a children’s mental health professional. He said legislators’ stated goal of protecting children does not match some of their decisions this session.

He cited House Bill 1410, which removes the requirement that children under 16 prove their age to get a job and which is awaiting the governor’s signature, and House Bill 1156, which restricts bathroom use in public schools based on students’ gender assigned at birth. That bill will be reheard in the Senate Education Committee after being amended.

Both bills would cause harm to children, Tierney said, while a bill that could have protected LGBTQ people of all ages was tabled by the Senate Judiciary Committee in January. Senate Bill 60 would have outlawed the use of “panic” regarding a victim’s sex, gender or sexual orientation as justification for violence against them.

Committee chair Sen. Gary Stubblefield (R-Branch), the former Senate sponsor of House Bill 1156, told Tierney to stay on the topic of SB 270. Tierney said the other bills were relevant because of the rhetoric legislators have consistently used to describe them.

He asked the committee to try to listen to transgender people’s experiences the same way Nicodemus the Pharisee sought out Jesus and tried to understand his teachings in the Gospels.

“It takes courage to listen to statements that are contrary to what you hold as unobjectionable truth,” Tierney said.

He added that St. Paul’s letters to the Galatians said “there is no male and female, for you are all one in Christ Jesus,” and that Old Testament law was a “guardian” or “schoolmaster” until Jesus came and freed his people from the law.

Payton said he appreciated both Tierney’s and Schnekloth’s Christian perspectives. He revisited the Bible verse that Tierney quoted, saying that denying the “standard of right and wrong” set by the law is to ignore the “schoolmaster.”

“I do believe that it’s important that we teach our children that there’s right and wrong, and I do believe there’s been a lot of rhetoric around this bill,” Payton said. “It’s not going to stop transgender people from going to the bathroom. [It’s] just asking that they don’t expose my kids and grandkids, and your kids and grandkids, to it because we’re trying to teach them a different standard.”

The Senate will take up the bill for a vote Tuesday. If it passes, the House Judiciary Committee will be next to consider the bill.