Arkansas House committee changes controversial public bathroom bill

Sponsor: Senate Bill 270 is now aimed only at “bad actors” around children in bathrooms

By: - March 28, 2023 11:05 pm

Aaron Jennen (right), a father of a transgender teenager from Fayetteville, speaks against Senate Bill 270 before the House Judiciary Committee on March 28, 2023. Sen. John Payton (R-Wilburn, left) is the bill’s sponsor. (Tess Vrbin/Arkansas Advocate)

The Arkansas House Judiciary Committee on Tuesday approved an amended version of a bill that initially would have criminalized entering and remaining in bathrooms and locker rooms that do not match an adult’s gender assigned at birth if children are present.

Senate Bill 270 now limits potential misdemeanor charges and prosecutions to adults present “for the purpose of arousing or gratifying a sexual desire of himself or herself or any other person.”

The amendment and the bill both passed on unanimous voice votes after five cumulative hours of frequently emotional testimony from 40 witnesses against the bill. Almost half identified themselves as transgender, including three minors, and several more said they are the parents, spouses or loved ones of transgender Arkansans.

Aaron Jennen, a Fayetteville attorney whose daughter Sabrina is transgender, requested the amendment during his testimony. The Jennens are plaintiffs in the federal lawsuit against a 2021 state law that banned gender-affirming health care for transgender minors.

Using men’s restrooms would inflame the mental distress that comes with his 17-year-old daughter’s gender dysphoria, Jennen said.

“I will never make her use the men’s restroom no matter how many laws you try to pass,” he said. “I won’t inflict that kind of pain on my child, and you wouldn’t either if she was yours.”

Sen. John Payton (R-Wilburn) and Rep. Cindy Crawford (R-Fort Smith), the sponsors of Senate Bill 270, added the amendment with encouragement from Reps. Nicole Clowney (D-Fayetteville) and Jimmy Gazaway (R-Paragould).

“It’s still possible for prosecution to take place to prove [violation of the policy] when somebody’s a bad actor, but it will help alleviate any prosecution of people who have no sexual desire involved,” Payton said.

Sexual violence debate

Payton has frequently said the bill is meant to protect children from sexual predators and invasions of privacy.

“I’ve had emails that say that trans people are not a threat to minors like middle-aged, white, straight Baptist men are, which I’m one of,” he said. “And I’ve got good news: this bill applies to me.”

Toni Rose, director of the Arkansas Legislative Prayer Caucus, was the sole witness for the bill. She said society’s accommodations for transgender people have “not separated the transgender woman from the predator male,” and Payton made a similar statement.

However, several witnesses against the bill said they are survivors of childhood sexual violence from men like those Payton mentioned, and they said Senate Bill 270 would not protect anyone in the past or in the future.

Rep. Nicole Clowney (D-Fayetteville, center) explains to the House Judiciary Committee why she opposes Senate Bill 270 on March 28, 2023. (Tess Vrbin/Arkansas Advocate)

Additionally, many of the transgender witnesses said their physical appearances would subject them to more suspicion and potential danger for using the bathroom that matches their gender assigned at birth than using a different one.

Clowney said she has been aware of this for decades, since she knows a transgender woman who was once “severely beaten” by someone who assumed she was assigned female at birth but later found out she was not.

“We are forcing those women to expose themselves like my friend was exposed, and we are subjecting those women to the potential violence that my friend suffered,” Clowney said. “That is the reality of what we are doing.”

Payton said the bill set a high bar for being charged or convicted, but witnesses said the burden of proof would be exposure of their genitalia.

“You can take me to jail and leave me there sitting in a cell fully clothed before I will do that,” said Cash Ashley, a transgender man and lifelong Little Rock resident. “As far as I’m concerned, that would be sexual assault against me.”

Payton said people who appear to be male or female would not be breaking the proposed law in the corresponding bathrooms “if you behave yourself.”

“If you present as one sex or the other, and you obviously show no signs of being the other sex, and you go into a bathroom that aligns with what you look like and what you present as, I can’t see how this bill would come into play,” Payton said.

He has repeatedly said that those who leave or attempt to leave a bathroom when asked to do so would not be subject to prosecution, and he said Tuesday that people in bathroom stalls or enclosed shower spaces should also not be considered criminals.

These defenses would not hold up in court because the bill does not include this language, Rep. Ashley Hudson (D-Little Rock) said.

“The way this is written, someone could be in the shower with the curtain shut, and because someone came in and knew that person was trans, they can seek to prosecute them for simply being in a shower [or] being in a bathroom stall privately by themselves,” said Hudson, who is an attorney.


Other transgender legislation

The earlier version of Senate Bill 270 narrowly passed the Senate on March 7 with 19 votes, all from Republicans. Sen. Joshua Bryant (R-Rogers) spoke against the bill and joined the six Senate Democrats in voting no. Six more Republicans did not vote, one voted present and two were absent.

A bill restricting bathroom use for transgender children in schools passed the Senate and then the House the following week along party lines. Gov. Sarah Huckabee Sanders signed House Bill 1156 into law March 21. It will go into effect 90 days after the legislative session ends.

Now Act 317, the law defines a person’s sex as “the physical condition of being male or female based on genetics and physiology.” Senate Bill 270 defines it as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.”

These different definitions could cause problems for an 18-year-old transgender high school student, said Evelyn Rios Stafford, a Washington County justice of the peace who became Arkansas’ first openly transgender elected official in 2020.

Simon Garbett, a transgender 16-year-old, said he already uses bathrooms at school with the utmost caution. When he turns 18 in 2024, he would have to go from worrying about Act 317 to worrying about Senate Bill 270 if it becomes law, he said.

Lizz Garbett, Simon’s mother, said their family is considering leaving Arkansas because the Legislature has introduced and advanced multiple bills that restrict the behavior of transgender people. Other bills include proposed restrictions on pronoun use in schools and a law that would classify gender-affirming care for transgender minors as potential medical malpractice.

Jennen said he and his family have deep roots in the state but are also fed up with legislation that would hurt Sabrina.

“I’m not going to live in a place where my daughter can’t use the bathroom,” he said.

Joanna Brandt (right) testifies against Senate Bill 270 before the House Judiciary Committee on March 28, 2023. Brandt’s 17-year-old son, Dylan, is transgender and the primary plaintiff in the federal lawsuit against a 2021 law banning gender-affirming health care for transgender minors. (Tess Vrbin/Arkansas Advocate)

The Jennens are one of four families challenging Act 626 of 2021, known as the Save Adolescents From Experimentation (SAFE) Act. U.S. District Judge James Moody enjoined enforcement of the law in 2021. A panel from the 8th U.S. Circuit Court of Appeals upheld the injunction, and the full court later refused to rehear the ruling.

Moody oversaw the trial against the SAFE Act in 2022 and has yet to issue a ruling. Jennen testified on the witness stand in October about Sabrina’s transition.

Joanna Brandt and her transgender son, Dylan, also testified as plaintiffs in the trial. Brandt said Tuesday that she and her family would try to leave the state if they could afford to do so.

Dylan is 17 and will be a senior in high school next year. He has used men’s restrooms without issue in the past but would almost certainly experience violence in his hometown of Greenwood if a father of a young girl thought he was following her into a bathroom, Brandt said.

“If you haven’t seen my son lately, he’s got a better beard than most of you and would look ridiculous and dangerous to others as he walked into a women’s restroom,” she told the committee.

Meanwhile, Lauren Fox said she does “all these little bitty things,” like painting her fingernails and wearing conspicuous jewelry, to assert her femininity so that other women feel safe around her in bathrooms and do not harass her for being transgender.

Nonbinary people experience harassment in gender-specific bathrooms no matter which one they use, said Tien Estell, advocacy and resource organizer for Intransitive Arkansas.

“[Someone] said, ‘You don’t belong in here,’” Estell said, sharing a recent experience in a public bathroom. “Where am I supposed to go? Where am I supposed to go to the bathroom if I happen to be in public?”

‘Some hope’

Rios Stafford was overwhelmingly reelected in 2022. This means Republicans in her district voted for her because the way she does her job is ultimately more important than her gender identity, said her husband, Bob Stafford.

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“Speaking of jobs, your job is to uphold the Constitution of the United States, and you swore on a Bible that you would do that,” he said. “Under the United States Constitution, we are all afforded equal treatment under the law, but you are singling out a population that’s maybe 1% to 2% of all Arkansans. You’re singling them out, and this is bullying. Why, I don’t know… but I know it’s not in your ‘Good Book.’ It doesn’t say a single thing about it.”

A few witnesses against the bill spoke from a place of faith.

Shea McGinnis, a transgender pastor who grew up in Arkansas, said it is offensive when people use Christianity to justify discrimination.

“I want trans children to see trans adults and to know them so they can see that there is a possibility to grow up,” McGinnis said.

Senate Bill 270 still implies that “being trans is somehow sexual in nature” even with the amendment, but the altered version is preferable to the previous version, Jennen said in an interview after the committee meeting.

“I think [the bill] passing as amended gives some hope,” he said.

This is the second time this year that legislators have amended a bill after pushback from members of the public who said it would discriminate against transgender Arkansans. Senate Bill 43, now Act 131, initially would have banned drag shows from being held within a certain distance of schools, parks and other places children frequent.

Similarly to Senate Bill 270, the sponsors of Senate Bill 43 said it would protect children from sexually indecent behavior. The bill was heavily amended in February to survive a potential court challenge, and Act 131 does not mention “drag.”

The amended Senate Bill 270 is expected to receive a vote from the full House before the end of the week. If it passes, it will return to the Senate Judiciary Committee for approval of the amendment.


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Tess Vrbin
Tess Vrbin

Tess Vrbin came to the Advocate from the Arkansas Democrat-Gazette, where she reported on low-income housing and tenants' rights, and won awards for her coverage of 2021 flooding and tornado damage in rural Arkansas. She previously covered local government for The Commercial Dispatch in Mississippi and state government for the Columbia Daily Tribune in Missouri.