House committee passes amended version of bathroom bill

Members of the public stand in the back of room 149 at the Arkansas state Capitol to monitor a standing-room only House Committee on Judiciary meeting Tuesday, March 28, 2023. (Arkansas Democrat-Gazette/Colin Murphey)

An Arkansas House panel on Tuesday passed an amended version of a bill that aims to create a criminal penalty for adults who knowingly enter or remain in a bathroom of the opposite sex to arouse or gratify a sexual desire while knowing a minor is present.

The Committee on Judiciary advanced Senate Bill 270 by Sen. John Payton, R-Wilburn, in a voice vote without audible dissent. The vote sends the measure to the full House for further consideration.

The unamended version of the bill Payton originally presented to the committee Tuesday would have generally criminalized 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.”

The amendment specifies a person must enter or remain in a facility "for the purpose of arousing or gratifying a sexual desire of himself or herself or any other person." Members of the committee requested the change after hearing from several opponents who said the bill would target transgender people who already face hostility when attempting to use public restrooms.

Payton presented the unamended version of the bill to the committee as a compromise, saying it would require high standards for prosecution. While Payton noted much of the discussion on the legislation addressed how it would impact transgender people, he said the bill would apply to all adults and was needed to protect minors.

Along with regulating bathrooms, Payton pointed to language in the bill saying it would apply to public changing facilities including “without limitation a restroom, bathroom, locker room, or shower room.”

Under the bill, these facilities include public and private facilities that are “held out as open to the public and designed to be used at a time during which a person may be in a state of undress in the presence of other persons.”

More than 30 people testified against the bill, and one person spoke in favor of it before the amendment was introduced.

Along with targeting transgender people, critics contended the bill would fail to protect children, questioned how the measure would be enforced and noted state statutes already contain laws intended to protect children from sexual indecency.

When discussing how the bill without the amendment would be applied, Payton said if a person using a bathroom of the opposite sex appeared to be of the appropriate gender, they would be unlikely to face prosecution. He also envisioned people asking members of the opposite sex to leave facilities before pursuing criminal penalties.

Lawmakers and opponents noted the bill did not address the scenarios Payton envisioned.

“You have assumed a bunch of language that is not in the bill,” said Rep. Ashley Hudson, D-Little Rock. “When as attorneys we look at a law, we are confined to the words on the page.”

A person who violates the bill would be guilty of a Class C misdemeanor for sexual indecency with a child. Payton noted the charge was less serious than existing sexual indecency with a child charges carrying felony penalties.

Among other exemptions, the bill would not apply to parents accompanying minors younger than 7 years old, people rendering medical assistance, law enforcement officials accompanying a person in their custody and people authorized to maintain and inspect facilities.