Senate sends bathroom bill back to panel for amendment

Sen. Jimmy Hickey Jr., R-Texarkana, asks for Senate Bill 270 to be pulled down during the Senate session Wednesday at the state Capitol in Little Rock. (Arkansas Democrat-Gazette/Staci Vandagriff)

The Arkansas Senate on Wednesday sent 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 to the Senate Judiciary Committee to be amended, two days after it cleared the committee.

The Senate voted to refer Senate Bill 270 by Sen. John Payton, R-Wilburn, back to the Senate committee at the request of Payton, after Sen. Jimmy Hickey, R-Texarkana, asked him to send it back to the committee.

"We need to get this right in committee," Hickey told the Senate.

Payton said there is a drafting error in his bill and he would ask the Senate Judiciary Committee to amend the bill to fix the error. He said Sen. Clarke Tucker, D-Little Rock, and Hickey "are right" and "it needs to be fixed."

He said several legislative employees and the attorney general's office and the Family Council vetted the bill before it was filed.

SB270 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."

Among other exceptions, the bill would provide 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.

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 told the Senate he considers his bill to be a compromise, but he knows both sides may be so far apart that even an effort to compromise could be considered to be extreme.

"The bottom line is this bill does not make it illegal for somebody to use the wrong bathroom if it does not match up with their sex unless there is a child present," he said.

The bill would protect his granddaughters and grandsons, Payton said.

"I think that it's a reasonable compromise to ask somebody that if you are going to use the wrong bathroom or dressing room that you make sure there is not a minor in there, and that's all this bill does," he said.

Payton said many constituents have told him that "we need to stop people from going into the wrong restroom [and] the wrong dressing room, and there are concerns over situations that people are hearing about." He said the bill would cover both transgender and heterosexual people.

But Tucker said the bill "makes it a crime to be a transgender adult in Arkansas." If enacted, the bill would be the most extreme anti-transgender law in America, he said.

Tucker, an attorney, said there are numerous problems with the bill and a prosecutor will have to prove beyond a reasonable doubt what a person's genitals were when they were born in order to obtain a conviction of the bill.

"What is a bill that's in this kind of shape doing on the floor of the Arkansas state Senate? Even worse, why does it stand such a high chance of passing?" he asked.

Tucker said he received a knife from Hickey during a dinner in conjunction with the Senate's organizational session in 2020, and Hickey's message was that "iron sharpens iron."

"I don't know about you, Senator Hickey, but I am worried that some folks have left their iron at home because we need to see some more sharpening around here," he said.

"Vetting bills is not partisan," Tucker said. "It requires good faith, mutual respect and hard work, and that's it."

He said Payton has indicated he would fix the bill through an amendment in the House.

Along with Payton's bill, lawmakers have considered at least one other measure which critics say could affect bathroom access for transgender people.

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.

Bentley's bill was pulled from the Senate floor earlier this month to allow for amendment. It has since been referred to the Senate Committee on Education.

Lawmakers also have advanced a bill that would allow a person who was injured by a "gender transition procedure" as a minor to sue the health professional who performed the procedure.

The Senate voted last week along party lines to send Senate Bill 199, by Sen. Gary Stubblefield, R-Branch, to the House. The bill is included in a special order of business on the House Committee on Judiciary's agenda on March 7.

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