On Friday, the Arkansas House of Representatives passed a bill that essentially makes it a crime for transgender people to use any facility that matches their gender identity.
The bill, HB1986, claims to be concerned with indecent exposure in public spaces, defining it as an act in which a person exposes his or her sex organs with the intent of satisfying their own or others’ sexual gratification, or with the knowledge that such exposure will cause “affront or alarm.”
While that section of the bill is largely unobjectionable, it adds a second section stating that a person who “knowingly exposes his or her sex organs to a person of the opposite biological sex: (A) In a public place or in public view; or (B) Under circumstances in which the person could reasonably believe the conduct is likely to cause affront or alarm.”
It’s that second section that is problematic for transgender people, as the law is written so broadly that it would essentially criminalize those who choose to use the restroom matching their gender identity.
A person could be found guilty of indecent exposure — even if they were just going to the bathroom — on the assumption that a person could “reasonably believe” that someone else might object to the mere presence of transgender people in a public restroom.
Under the penalties assessed for being found guilty of “indecent exposure,” considered a Class A misdemeanor, a person could be fined up to $2,500 and sentenced to up to a year in jail.
For a fourth or fifth conviction within 10 years of a previous conviction, the person accused could then be charged with a Class D felony, carrying up to six years in prison and a $10,000 fine. For a sixth and any subsequent convictions, indecent exposure is a Class C felony, carrying a $10,000 fine and potentially up to 10 years in prison.
If a transgender person were to be tried for violating this law by an overzealous prosecutor, and were convicted, every instance in which they used a public restroom could potentially be used to throw them in jail for up to 10 years.
Transgender advocates were incensed at the bill’s passage, particularly with respect to the severity of the punishments the bill seeks to dole out.
“This blatant and deliberate attack on over 15,000 transgender Arkansans would make it a crime — punishable by prison time and a lifetime criminal record — for transgender people to meet one of the most basic human needs and use the restroom,” Mara Keisling, the executive director of the National Center for Transgender Equality, said in a statement. “If this bill becomes law, transgender people, as well as anyone who is simply suspected of being transgender, will have to live in constant fear that they will be interrogated, arrested, or even prosecuted and put in prison every time they simply need to use the restroom.”
While the Arkansas bill takes a different route by trying to criminalize “indecent exposure,” its effect is no different from “bathroom bills” like the HB 2 law passed in North Carolina in 2016 and SB 6, which was recently approved by the Texas Senate. The Arkansas Senate is also considering a nearly identical bill that explicitly bans people from using facilities that don’t match their biological sex at birth.
HB1986 passed the House by a vote of 65-3, with 14 representatives abstaining. It now heads to the Senate for approval.
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