Arkansas panel approves proposed ban on school employees using transgender individuals’ pronouns

A proposed law that would require school employees in Arkansas to address students and other employees by their given names and pronouns passed the House Education Committee on Thursday and will be heard by the full House.

House Bill 1468 is meant to shield teachers and other school employees at all levels of public education from negative consequences if they do not use names and pronouns that “are inconsistent with a person’s biological sex,” according to the text of the bill.

Five people testified against the bill, calling it the latest example of legislation targeting transgender Arkansans this session.

“This Legislature is making itself the gatekeepers of personal identity and gender expression with the introduction of this bill,” said Alison Guthrie, a psychology student and activist.

School employees would “not be subject to adverse employment action” and students would not be disciplined for refusing to use others’ names and pronouns besides the ones given at birth, the bill states.

House Bill 1468 would prohibit “compelled speech” for those with certain religious beliefs about sex and gender, Rep. Wayne Long (R-Bradford), the bill’s primary sponsor, repeated to the committee.

Sarah Everett, policy director for the American Civil Liberties Union of Arkansas, said the bill violates the First Amendment and would create “compelled speech” for those who respect transgender people.

“It both limits free speech and compels a teacher to speak in a way that they don’t agree with, only because they support that transgender student,” Everett said.

Additionally, the bill would require written permission from a minor’s parent or guardian for school employees to use any “pronoun or title that is inconsistent” with the minor’s biological sex or any name or nickname that does not conform with the minor’s birth certificate.

Guthrie said the bill is not clear about how it would be enforced, such as if a student’s name or appearance is androgynous.

“Will faculty and teachers halt classes just to verify whether or not that is the child’s given name just because of how they physically look?” Guthrie said.

Transgender children whose parents do not accept their gender identities would not be able to receive the written permission stipulated in the bill, said Jessica Disney, a transgender woman from Conway who works with marginalized youth.

“This is codifying the right to cause harm and distress to another person,” Disney said.

Previous bills and court cases

Teachers and professors who have refused to use transgender students’ pronouns have been sued in other states. The U.S. 6th Circuit Court ruled in a professor’s favor in Meriwether v. Hartop in 2022.

A Christian teacher in Indiana called all students by their last names in order to avoid using pronouns and lost his job as a result in 2018. The U.S. Department of Justice declared in 2022 that requiring the teacher to use students’ preferred pronouns and names was not a breach of religious freedom.

House Bill 1468 should prevent similar situations from arising in Arkansas, said Matt Sharp, senior counsel with the Alliance Defending Freedom.

ADF is a conservative, faith-based advocacy group that has opposed LGBTQ rights efforts. Rep. Mary Bentley (R-Perryville), a co-sponsor of House Bill 1468, said the ADF helped amend Senate Bill 43, which she also co-sponsored when it was moving through the Legislature in January and February.

Senate Bill 43 is now Act 131 of 2023. It initially would have classified drag performances as an “adult-oriented business” similar to pornography, strip clubs and other sexually explicit content and activities. Such businesses are not allowed to be located within a certain distance of schools, parks and other places children frequent.

The bill was heavily amended so it would hold up in court, Bentley said in February. Act 131 does not mention the word “drag.”

Bentley previously sponsored a 2021 bill that would have required public school employees to address students only by the name and sex designated on the student’s birth certificate. The bill passed the House and later died in the Senate Education Committee.

Jerry Cox, founder and president of the conservative Family Council, said HB 1468 is a current version of Bentley’s previous bill. Cox was the only witness to support the bill Thursday.

School employees should not have to deny their “sincerely held convictions,” Cox said.

“Teachers and students do not surrender their First Amendment rights just because they walk through the door of a school building,” he said.

Rep. Denise Garner (D-Fayetteville) was the only Democrat present at the meeting and the only committee member to vote against the bill. She asked Sharp why “an individual’s identity [is] a matter of public concern.”

Sharp said both pronouns and religion contain “a statement of belief and truth.”

“We don’t force teachers to greet students with a greeting of [a specific] faith because we know that could conflict with the teacher’s own beliefs,” Sharp said.

Bentley has often said the bills she sponsors are meant to protect children from harm.

Tien Estell, advocacy and resource organizer with Intransitive Arkansas, challenged this statement. Calling transgender children by the name and pronouns they choose is a guaranteed boon to their mental health that does not cost money or require insurance, Estell said.

“We should be protecting trans children and creating safety and belonging for them by addressing them with respect,” Estell said. “Please show the kids of Arkansas that you respect them [and] that you honestly want to protect them.”

Legal issues

Long said HB 1468 is rooted in the Religious Liberty section of the Arkansas Constitution’s Declaration of Rights: “No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience.”

Rumba Yambú, co-founder and executive director of the advocacy group Intransitive Arkansas, pointed out that Amendment 33 of the Arkansas Constitution puts management of higher education in the hands of an institution’s board. The amendment prohibits the transfer of this power to other entities, and Yambú said HB 1468 would clash with this by giving some of that power to state law.

Yambú added that the bill would violate Title IX, the federal law that prohibits discrimination on the basis of sex or gender identity within federally funded institutions, including schools.

House Bill 1468 “will force teachers into legal battles over no real problem,” Everett said.

Those who respect the names and pronouns transgender people say are right for them do so because of basic decency, not because of any law “compelling” them, Guthrie said.

“I would argue that it compels my free speech when I am forced to be respectful in this room rather than express my true thoughts and emotions on this bill,” she said. “But I choose to be respectful because that’s what this is about: respect.”