Proposed law restricting school bathroom use will return to Arkansas House

A proposed law that would restrict bathroom use in Arkansas public and charter schools based on students’ gender assigned at birth passed the Senate with a 29-6 party-line vote Monday.

House Bill 1156 would apply 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.

The Republican legislators and conservative advocacy groups supporting the bill have repeatedly said it will protect all children, regardless of gender, from invasions of privacy.

Democratic legislators and LGBTQ rights activists have said House Bill 1156 is one of many introduced this year that target transgender Arkansans. A bill restricting transgender adults’ bathroom use passed the Senate last week, and the Legislature has also considered bills meant to restrict drag performances, pronoun use in schools and transgender minors’ health care.

House Bill 1156 singles out transgender youth, and the “reasonable accommodation” clause does not help, opponents of the bill have said.

“We’ve tried ‘separate but equal’ in this country before, and we know how that turned out,” said Sen. Clarke Tucker (D-Little Rock), referring to the racial segregation that led to the landmark 1954 U.S. Supreme Court decision, Brown v. Board of Education, that began the dismantling of segregated schools and fueled the Civil Rights Movement of the 1960s.

“You might believe that this bill preserves some form of our society, but it doesn’t,” Tucker added. “There have been trans kids using bathrooms different from the ones they were assigned at birth for as long as there have been schools and bathrooms, and the reason for that is there have been transgender people for as long as humans have existed. The only part of society that this bill maintains is discrimination, which is something else that’s existed for as long as humans have been around.”

Previous committee testimony

House Bill 1156 will return to the House after being amended in February to fix a technicality and passing the Senate Education Committee twice, first on Feb. 15 and again on Wednesday. The committee’s two Democrats, Senate Minority Leader Greg Leding (D-Fayetteville) and Senate Minority Whip Linda Chesterfield (D-Little Rock) were the only dissenting voices both times.

On Wednesday, 16-year-old Kaymo Mainard O’Connell spoke against the bill before the committee. Kaymo’s school in Little Rock has only one single-occupancy restroom, and it is only accessible with permission from the school nurse.

Kaymo testified to being bullied and harassed for being transgender, including in school bathrooms, and said the school has “too many trans, gender-nonconforming and intersex people” to use just one single-occupancy restroom.

Leding brought up Kaymo’s testimony Monday on the Senate floor. He also mentioned Simon Garbett, another transgender 16-year-old from Little Rock, who told the House Judiciary Committee on Tuesday that his “blood would be on [legislators’] hands” if they passed a bill that would classify gender-affirming health care for transgender youth as potential medical malpractice.

Senate Bill 199 awaits a signature from Gov. Sarah Huckabee Sanders after passing the House on Wednesday afternoon.

Later that day, which was International Women’s Day, Sanders’ office tweeted that it was “a good time to remember that Democrats can’t even tell you what a woman is.”

Leding tweeted in response that Sanders should take the time to speak to transgender children and their families. Lizz Garbett and Marie Mainard O’Connell, Simon’s and Kaymo’s mothers, respectively, both spoke on their children’s behalf before the House committees last week.

Making Democrats “the butt of the joke” in Sanders’ tweet was a way to sidestep the reality that bills like House Bill 1156 will hurt children, Leding said.

“You can make fun of me all you want, I make fun of [myself] all the time, but for the kids and families, this is not a joke,” he said.

Leding and Tucker both said studies have shown that transgender-inclusive bathroom policies do not lead to increases in violence, while transgender youth are more often bullied and at a greater risk of suicidal tendencies because of social stigma against transgender people.

Tucker also mentioned a 4th U.S. Circuit Court of Appeals decision that struck down a similar school bathroom policy in Virginia in 2020. Sarah Everett, policy director with the American Civil Liberties Union of Arkansas, mentioned this ruling while speaking against House Bill 1156 before the Senate Education Committee on Feb. 15.

The decision said the policy was based on “the fantastical fears and unfounded prejudices of the adult community,” and Tucker said the same is true for House Bill 1156.

“My question for this body is the same one I had at the beginning of this session: When are we going to stop castigating and marginalizing people just because they’re different?” Tucker said.

Sen. Matt McKee (R-Pearcy) said he had no problem with celebrating people’s differences as long as they “do it outside the girls’ locker room.”

“If you want to say that discrimination has existed since time immemorial, I would say I agree with you,” McKee said. “We discriminate based on your body parts.”

McKee is a member of the Senate Judiciary Committee, and he asked a transgender woman about her genitalia during her testimony against Senate Bill 199 before the committee in February.

Dr. Gwendolyn Herzig, a pharmacist who provides hormones to transgender Arkansans, said she would not answer the “highly inappropriate” question.

House Bill 1156 will next be heard by the House Education Committee for the second time.