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Senate committee passes bill criminalizing use of opposite sex bathroom in the presence of a minor

Measure targets opposite-sex use by Will Langhorne | February 28, 2023 at 8:30 a.m.
(File Photo/Arkansas Democrat-Gazette/Thomas Metthe)

A bill intended to create criminal penalties for a person who knowingly remains in a bathroom of the opposite sex while a minor is present passed a Senate panel Monday.

Senate Bill 270, by Sen. John Payton, R-Wilburn, advanced from the Committee on Judiciary in a 5-2 roll call vote. The panel's Democratic senators, Clarke Tucker of Little Rock and Stephanie Flowers of Pine Bluff, were the two detractors. The vote sends the bill to the full Senate for further consideration.

Payton said his bill was needed to protect minors from being "exposed to something they shouldn't be exposed to."

"It does not make it illegal to go into the wrong facility as assigned to your sex, but it does make it illegal to knowingly remain in there if there's a minor present," he said.

Five people testified against the bill and one person spoke in favor of it.

Opponents said the bill would create the most restrictive ban on bathroom use for transgender people in the nation while doing little to protect minors from sexual abuse. Critics also questioned how officials would verify an accused person's sex and enforce the bill's provisions.

Payton said his bill does not specifically target transgender people but would also apply to "perverse heterosexuals."

The legislation would generally criminalize instances where a person 18 or older knowingly "enters into and remains in a public changing facility that is assigned to persons of the opposite sex while knowing a minor of the opposite sex is present in the public changing facility."

Under the bill, a person would be guilty of a misdemeanor the first two times they violated the section. Subsequent offenses would be classified as felonies, Payton said.

Before the vote on the bill, Tucker said the measure was the latest example of the Legislature failing to "scrutinize bills in the manner that it should." He said the bill would put "going into a bathroom, using the bathroom and leaving" on par with existing state law intended to protect minors from acts of sexual abuse.

"No, I don't think this bill is covering going into a bathroom, using the bathroom and leaving," Payton said. "It's choosing to use the wrong bathroom while minors are present."

Payton noted that a minor may be exposed to persons in "a state of undress" in changing facilities.

"If you're going to use the wrong facility, then you have a responsibility to make sure the other people are out of the way and are not exposed," he said.

Sarah Everett, American Civil Liberties Union of Arkansas policy director, said the legislation would be "the most extreme bathroom ban" in the nation if passed.

"There is no other state that has a criminal ban against transgender people using the restroom whether or not a minor is present," she said.

Everett noted the bill does not address criminal activity or intent to harm. In addition to affecting transgender people, the bill also could affect women who look masculine or have mastectomies, she said.

When asked if he was aware of any instances where a child was threatened by someone using a bathroom intended for the opposite sex, Payton said he was not aware of any "on the public record." Some constituents have said it was a concern at restaurants and gas stations, he said.

Rumba Yambu, executive director of Intransitive, a transgender support organization, said lawmakers should shift their focus to legislation aimed at protecting children from sexual assault by non-strangers.

"I've worked with sexual assault survivors for years," he said. "It's always the same, whether they are children or adults, it's always someone close to them."

Luke McCoy of the Family Council spoke for the bill, saying his organization had worked with Payton on the measure.

"We think this a bill that could have been in use in previous situations, may be just a few, but nonetheless even if there aren't any this is a proactive bill," he said.

Tucker questioned if criminal penalties would apply to a person who used a bathroom of the opposite sex and remained in the bathroom after a minor entered it.

Payton said it would depend on the prosecutor's discretion and on how long the person remained in the restroom.

"Even if you're sitting in a stall?" Tucker asked.

In that instance, Payton said an attorney might claim the person was in a separate room. If a person is "behaving" themselves while in a restroom of the opposite sex, Payton said they would be unlikely to face prosecution under his bill.

"It's going to be really hard for someone to prosecute you over this bill. You have to prove 'knowingly' and 'remains,'" he said. "It definitely is a tool in the toolbox for the prosecutor or for the employee or for the other patrons to demand somebody change their behavior and don't hang out in the bathroom."

Jessica Disney, a transgender woman, spoke against the bill, saying transgender people already face harassment when appearing in public.

"I've been followed into a restroom at the beginning of my transition by both men and women seeing me, demanding that I not continue walking forward or they would call the police on me or subject me to violence," Disney said. "I've had death threats sent to me and posted on the door of my own home because I am simply transgender."

Tucker questioned how law enforcement and prosecutors might verify a person's sex if the person were accused of violating the provisions of Payton's bill.

"In order to be prosecuted under this crime, will the defendant have to expose their sex organs," he asked.

Payton said officials might draw blood from a defendant to test their chromosomes.

Among other exceptions, the bill provides exemptions for parents accompanying minors, people rendering medical assistance, law enforcement officials accompanying a person in their custody and people authorized to maintain and inspect facilities.

Another bill intended to restrict transgender people from using the bathroom of their choice at public schools was pulled from the Senate floor earlier this month to allow for amendment.

House Bill 1156, by Rep. Mary Bentley, R-Perryville, would require public schools and open enrollment public charter schools to restrict people from using a restroom that does not correspond with the sex listed on their birth certificate.

Information for this article was contributed by Neal Earley of the Arkansas Democrat-Gazette.


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