A Senate bill to outlaw people from entering restrooms, changing rooms and sleeping quarters designated for the “opposite sex” in shelters and all public buildings passed out of committee Thursday.
Introduced by Sen. Blake Johnson (R-Corning) and co-sponsored by Rep. Mary Bentley (R-Perryville), the bill targets transgender people and would open up state and local government entities to lawsuits from anyone who “encounters a person of the opposite sex” in public bathrooms.
Such lawsuits against the state are not currently possible thanks to sovereign immunity, a legal rule that shields the state of Arkansas from being sued in its own courts. In 2018, the Arkansas Supreme Court ruled that the state Legislature could not waive the state’s sovereign immunity, meaning Johnson’s legislation is unlikely to be constitutionally sound.
Sen. Clarke Tucker (D-Little Rock) pointed this out, but that didn’t stop the Senate State Agencies and Governmental Affairs Committee from passing the bill to the full Senate. Tucker is the only Democrat on the eight-member committee.
Tucker said bills that allow claims to be made against the state typically lay out a procedure for doing so through the Arkansas Claims Commission. This bill does not.
Public entities without sovereign immunity, including local governments and school districts, could still be sued in civil court under the bill.
“It applies to all public buildings, restrooms, locker rooms, changing rooms, shower rooms and rooms for overnight stay,” Johnson said.
The bill defines sex as “an individual’s biological sex, either male or female.” It defines male as “an individual who naturally has, had, will have, or would have but for a congenital anomaly or intentional or unintentional disruption the reproductive system that at some point produces, transports, and utilizes sperm for fertilization.”
It defines female “an individual who naturally has, had, will have, or would have but for a congenital anomaly or intentional or unintentional disruption the reproductive system that at some point produces, transports, and utilizes eggs for fertilization.”
Arkansas law currently restricts transgender people from using the bathroom that matches their gender in public schools thanks to a bill, also sponsored by Bentley, that Gov. Sarah Sanders signed into law in 2023.
If passed, SB 486 would extend the restrictions on transgender people’s ability to use the bathroom that matches their gender to all public buildings and shelters in Arkansas. The same restrictions would extend to changing rooms and sleeping quarters.
The bill does not define what a “shelter” is, which Tucker also pointed out.
A lawyer from the Alliance Defending Freedom, a conservative christian legal advocacy group behind other anti-transgender legislation that’s passed through Arkansas’s supermajority Republican Legislature in recent years, appeared with Johnson to answer questions about the bill. The lawyer agreed the bill should include a definition for “shelter.”
The bill would apply to adult and juvenile correctional facilities, where transgender people, especially women, are often already housed based on the gender they were assigned at birth and are sexually harassed and assaulted at significantly higher rates than other groups.
Bentley recently sponsored another anti-trans bill that would have allowed for lawsuits against anyone who contributes to the “social transition” of a minor. Bentley pulled this bill down after the Arkansas Attorney General’s office said it was too blatant of a First Amendment violation to defend in court.
“I wish we didn’t have to do things like these and people knew what bathroom to go to and where to sleep and how to stay separated,” Johnson said.
Asked for instances of Arkansans being accosted or assaulted by transgender people in bathrooms, Johnson could not provide any examples.
Sen. Alan Clark (R-Lonsdale) came to Johnson’s defense:
“Sen. Johnson, would it surprise you that in a quick internet search I found numerous cases that would be covered by this bill across the country?” Clark said.
Johnson asked Clark to share an example.
“‘Trans woman wins settlement from gym that refused her use of a women’s locker room.’ That comes out of El Cajon, California. Is that good enough?” Clark said, reading from a tablet.
“That’s good enough,” Johnson said.
The article Clark appears to have come across in his quick internet search is a story published by the American Civil Liberties Union in 2021. It is important to note the story Sen. Clark referenced is not an example of a transgender person doing anything illegal, and no one except the transgender woman appears to have been harmed.
Tucker, who voted against the bill, called it “wholly unnecessary” and said “the law already handles these situations.”
“If you go into a bathroom, if everyone’s a woman in there or if everyone’s a man, it doesn’t matter … and you expose yourself or attack someone in the bathroom or shelter you are guilty of a crime and you’ll be sent to prison,” Tucker said.
Tucker said the committee is “actively causing harm with this bill” and said it was “disappointing” to see more anti-trans bills.
“Transgender people exist. You may not want them to but they exist in Arkansas and they need to feel welcome in their state,” Tucker said. “It’s gonna require trans women to go into men’s bathrooms and trans men to go into women’s bathrooms, and everyone is going to think they’re in the wrong bathroom.”
The bill also causes harm by “bullying a vulnerable community in Arkansas, which the Arkansas Legislature has done for decades,” Tucker said.
“For decades it was racial minorities. When I first got to the Legislature it was gay and lesbian people. For the last three sessions it’s been transgender Arkansans,” Tucker said. “I had hoped that we had gotten it out of our system because we ran a lot of anti-transgender bills in the 2021 and 2023 sessions.”
In 2021, Rep. Cindy Crawford (R-Fort Smith) sponsored a similar bill that would require people to use the bathrooms that correspond to their gender assigned at birth, though it stalled after lawmakers decided it would cost the state too much money.
SB 486 will be heard next by the Senate.