What You Can Do To Help

Today, Arkansas lawmakers gave their final vote on SB 486, pushing it through the House, right before the end of the regular session. The bill, now headed to the governor’s desk, is a sweeping measure that could let anyone sue a shelter, prison, or even a small-town city hall if they spot a transgender person in the “wrong” restroom.

The bill passed out of the Senate with very little resistance and was transferred to the House, where activists spoke out against it with strong words. Despite heart-wrenching testimony during the State & Government Affairs committee meetings and a last-ditch democratic attempt to stall the bill by requesting a financial impact assessment on Monday, the bill passed easily during the 1 p.m. floor-vote today.

Here’s what the bill does:

SB 486 redefines “male” and “female” according to reproductive capacity. The language mirrors the recent Trump executive orders that have been championed by anti-trans groups nationwide:

“Female” means “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.”
“Male” means “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.”
The second thing it does is define its scope: every public building in the state.

This includes universities, libraries, tornado shelters, domestic-violence shelters, prisons, town halls, the DMV, residence halls, county health units, courthouses, fire stations, parks, auditoriums, municipal airports, senior centers, etc.

If taxpayers own or lease it for official business, it is a public building under this law.

The teeth of the bill are this: It creates a private right of action (a “bathroom bounty”) that allows individuals to sue the facilities for damages, attorney’s fees, and costs for up to two years after the fact. It creates incredibly strong incentive for facilities to enforce the rule or be forced to pay damages. This is language that invites vigilante policing of gender presentation and a culture of paranoia, modeled after Texas’s SB 8, an anti-abortion law that faced fierce public backlash.

Unlike Texas’s law, it doesn’t establish a $10,000 payout for successful suits. Instead, the plaintiff will need to prove financial damages. These could come from work missed due to emotional distress, therapy bills, etc. Although damages would be incredibly difficult to prove, the lawyers’ fees, discovery charges and medical record requests could be incredibly expensive and are automatically covered if the suit is successful. Because of this, even a $1 award could be very financially damaging to the facility in question.

The law doesn’t have any criminal or civil penalty for the trans person themselves, only the facility they were in.

How it passed:

The bill was sponsored by Senator Blake Johnson (R) of Corning and rep Mary Bentley (R) of Perryville in the House. When it was presented in committee, both representatives were accompanied by lawyers from the out-of-state Alliance Defending Freedom. This is an organization that has the following stated mission:

”At Alliance Defending Freedom, we believe government policy should reflect the truth about God’s created order: that biological differences between men and women matter, that marriage is the union of one man and one woman, and that children are best cared for by their moms and dads.”

In the committee meetings, these lawyers presented the bills, took questions, persuaded the legislature, and provided legal feedback arguing the bill would withstand court scrutiny.

Democratic senator Clarke Tucker of Little Rock did his best to challenge the law in the Senate committee, but was unsuccessful. When he asked if there were any cases in Arkansas where this was an issue, Republicans pulled out their phones and started googling. One cited a case in El Cajon, California.

It was a similar story in the House committee, but despite constant reschedules, a large number of folks who turned up to speak against the bill. There was a brief moment of hope when a House representative requested a financial impact statement during the last few days of the regular session that could have run out the clock on the bill. This statement was provided, however, in time for a full vote today. In both chambers, votes were split down party lines, with Republicans Julie Mayberry, Justin Gonzales, DeAnn Vaught, and Richard Womack voting alongside house Democrats against the bill.

What you need to know if you’re trans

The bill doesn’t include any civil or criminal penalties for using the bathroom, however you could still be arrested for trespassing or something similar if you break policy in a public building.

It’s likely that all public institutions, including universities, shelters, and prisons, rewrite their handbooks and policies to exclude you from using the restroom of your choice.

You are still free to use private business bathrooms.

In Conclusion

This is just another example of litigation and fear winning out over evidence and inclusion. With SB 486 on the governor’s desk, every transgender Arkansan finds themselves at the center of a culture war they never asked for. Despite a complete lack of evidence or complaints against them, Republicans decided to make yet another law bullying one of the most vulnerable populations.