A 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 who is a member of the opposite sex 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 on 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.
In its amended form, Payton said the bill would still allow prosecutors to pursue charges against bad actors but would "help alleviate any prosecution of people who have no reason or no sexual desire involved."
More than 30 people spoke against the measure and one person testified in favor of it before the amendment was introduced.
Aaron Jennen, an attorney who opposed the bill, urged lawmakers to consider specifying penalties would only apply if a person was attempting to arouse or gratify a sexual desire. He raised concerns the unamended bill would violate the equal protection clause of the U.S. Constitution by limiting access to public spaces for transgender people.
Jennen told committee members that his transgender daughter had suffered stress and anxiety because of her gender dysphoria when it came to using public restrooms.
"She would need to use the bathroom and would beg us to the point of tears to take her home," Jennen said. "I will never -- I say never -- make her use the men's restroom no matter how many laws you try to pass. I won't inflict that kind of pain on my child, and you wouldn't either if she was yours."
Before Payton provided the amendment, Rep. Nicole Clowney, D-Fayetteville, called on her fellow committee members to vote against the bill, saying that while Payton may not have intended to target transgender people, the measure could result in more violence against them.
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 affect transgender people, he said the bill would apply to all adults and was needed to protect minors.
When asked if cases of assaults or voyeurism were occurring in Arkansas bathrooms, Payton pointed to an incident that occurred 35 years ago involving a male teacher and female students at a school he attended.
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."
Along with saying it targeted 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.
Opponents also said the bill would affect people whose appearances may not conform with appearances generally associated with their sex.
Kathy Brown Nichols told the committee she is frequently harassed when entering public restrooms for women.
"I politely, ever so gently show them that I am female and I go about my business," she said. "If this bill is passed, it seems like an unintended consequence for people that are like me."
Toni Rose with An American Speaks was the only person to testify in favor of the unamended bill. While Rose said the bill may appear to target the transgender community, it was needed because of "our inability, refusal, whatever it is to determine the predators from the truly gender dysphoric."
Joanna Brandt said if the bill passed, her transgender son, who has a beard, would have to use the women's restroom in public.
"[He] would look ridiculous and dangerous to others as he walked into a women's restroom doing the very thing that you all say this bill is meant to prevent, which is making women feel uncomfortable," she said.
As a high school student, Brandt noted her son's access to bathrooms would already be limited by a recently enacted bill, Act 317, which requires public schools and open-enrollment public charter schools to prohibit people from using a multiple-occupancy restroom that does not correspond with the sex listed on their birth certificate.
Jessica Disney, a transgender woman, urged lawmakers not to pass the bill, saying transgender people already face harassment for using public restrooms.
"I truly just beg you to allow us to exist," Disney said. "We cannot be criminals for needing to use the restrooms."
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."
Hudson said the unamended version of the bill was an exact copy of a bill passed in North Carolina in 2016 that gained national attention. Payton said his bill originated out of discussions during a special legislative session in Arkansas roughly six years ago.
A person who violates the bill would be guilty of a Class C misdemeanor for sexual indecency with a child. Payton noted that the charge was less serious than an existing sexual indecency with a child charge 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.