Arkansas’ SB270 would criminalize adults for using a bathroom that does not align with their sex assigned at birth if a child is present. The bill passed out of the Senate Judiciary Committee and would now need to pass the Full Senate before becoming a law.
In the 2023 legislative session alone, a record-breaking number of 351 anti-LGBTQ legislation have been introduced, according to the ACLU’s tracking map of anti-LGBTQ bills. While Arkansas is contributing only seven of such bills, SB270 would be the most oppressive bathroom bill to date.
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The bill, proposed by Republican Sen. John Payton, amends Arkansas’ current code of criminal offense of sexual behavior in the presence of a minor, wherein its unspecific terms could potentially qualify trans people as felonies of the bill.
Specifically, this amendment would target any adult using a restroom that is “assigned to persons of the opposite sex while knowing” a minor is present in the facility. This means that a trans person could be breaking the law if a minor is in the bathroom at the same time as them.
As for the penalties, the first two times would qualify as a misdemeanor, and the third would qualify as a felony. Exceptions to SB270 include adults taking their own children under the age of 7 years old into the bathroom, minors needing medical assistance from an adult, maintenance and inspections, and certified law enforcement or corrections officers accompanying a person of the opposite sex into their custody.
“What this bill seeks to do is if you have minors in the restroom, or in the dressing room, and stuff like that, then we’re trying to prevent a violation of their privacy, I guess it would, so to speak, or exposing them to something they shouldn’t be exposed to,” Sen. Payton said during the committee meeting on Monday. According to Sen. Payton, officials may even draw blood from a defendant to test “diagnose” their chromosomes to determine someone’s sex assigned at birth.
“Most people, from the time they’re old enough to communicate with their parents, know what their gender is.” he continued. “Now I understand in this day and age some people are led to believe that they were assigned the wrong gender, but the X and Y chromosomes still exist if you need to diagnose it.”
For LGBTQ organizers and organizations of Arkansas, there is a concern over how SB270 would be policed, should it pass into law.
“How do you enforce that people only use gender restrooms or changing rooms according to their assigned gender at birth without being unduly invasive?” Said Tig Kashala, Director of Operations at Lucie’s Place, a grassroots, direct services and advocacy non-profit in Arkansas providing LGBTQ young adults experiencing homelessness in Arkansas housing solutions.
According to Kashala, SB270 has the potential to affect everyone, not just trans people.
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“Screenings in public areas such as arenas and airports—which are already invasive in nature—have repercussions for people outside of [the trans community],” Kashala said. “They have repercussions for intersex people. They have repercussions for people who present differently from what their assigned gender might have been—which does not always mean that they’re a trans person.”
The screenings also call into concern as to why further policing is necessary, especially if there have been no bathroom incidents where minors were assaulted by trans people. When Democratic Sen. Clarke Tucker questioned Payton on whether a child in Arkansas has been threatened while using the bathroom, Payton himself admitted that, no, “[at least] not on public record.”
It’s hard to decipher, then, what exactly the intended purpose of the bill is if there has been no evidence to demand such a need for Arkansas.
“The messaging is clear: our state legislature doesn’t want us to be in Arkansas and some think we’d be better off dead,” said Jessica Disney, a trans rights activist from Conway, Arkansas. Disney was one of the five people at the Senate Judiciary Committee who testified against the bill on Monday.
During her testimony, she asked the committee: “Do I need to wear my identification papers or a special symbol for all to see when I enter the restroom to help people identify me and who I am? Should someone call the police on me, am I supposed to allow an officer of the law to sexually assault me and feel me up so that I can be allowed to use the restroom?”
Disney told Reckon that contrary to Sen. Payton and SB270′s intent, the harassment in Arkansas that is worth noting is the harassment towards trans people like herself.
“Since transitioning publicly, I have had both men and women follow me into the women’s restroom threatening me with violence or authority figures when all I want to do is lock myself in a stall and use the restroom just like anyone else,” Disney said. “I have been forced into the men’s restroom only to have the facilities workers panic thinking they had come into the women’s restroom while people were inside, [worrying] they would get in trouble.”
Between the lack of evidence showing the need for the bill in the first place and the unclear process of what it would look like to enforce SB270 should it pass, how much of the bill is an effort to protect children, and how much of if it is actually a push for trans people to be excluded from the public?
Read more: When You Were Here: A series centering the humanity of trans lives stolen by violence
Why is this happening and what’s next?
The swarm of anti-LGBTQ legislations are a frantic effort to regain conservative power, according to Rumba Yambú, the co-founder and director of Intransitive, a trans organization in Arkansas doing a combination of direct services, legislative work, and community events.
“[Republicans] know that they’re losing the power and the hold that they’ve had in this state,” Yambú said. “Part of this very organized attack on trans folks is to make sure that they hold on to power, that they can make their constituents [feel] tired of fighting and use that to benefit their agenda.”
Bill 270 went on to the Full Senate yesterday, and the future of trans people’s access to bathrooms remains to be unpredictable.
To learn more about how you can support LGBTQ rights in Arkansas and in general, Yambú recommends uplifting on-the-ground organizations that are doing work against anti-LGBTQ legislations, be it organizing, protesting, or funding.
According to Yambú, what made a huge difference for Intransitive last legislative session, and therefore made all the work possible for this session is how much visibility they received.
“The more folks see the ways in which we love and resist in Arkansas, the more people are going to realize Arkansas is not a lost cause,” Yambú said. “You can’t deem our state a lost cause, because we have the most marginalized people here who are unable to leave. Whenever you say this state is a lost cause, you’re ultimately turning your back on the most marginalized folks who are unable to leave.”