Fear and Loathing (of Trans People) in Arkansas

By: Gillian Grant

Just three months into 2023 and state legislatures throughout the country have already introduced nearly 400 anti-LGBTQ bills. Most of the bills specifically target trans communities by limiting access to healthcare, athletics, affirming school environments, and public accommodations. One particularly egregious example is Arkansas’s S.B. 270, which passed the Arkansas Senate on March 7^th.It has been assigned to Judiciary Committee in the Arkansas House and is awaiting hearing.

S.B. 270 would make it a misdemeanor violation of Arkansas Code § 5-14-110 (“Sexual Indecency With a Child”) for an adult to “knowingly enter[] into and remain[] in a public changing facility that is assigned to persons of the opposite sex while knowing a minor of the opposite sex is present.” This means that a trans person using a public restroom or locker room that is consistent with their gender when there is also a minor present could be found guilty of sexual indecency with a child—a crime that also includes molestation and statutory rape. Unlike other violations of this statute, S.B. 270 does not require that the violator intend to “arouse or gratify a sexual desire,” which would make it much easier to prosecute trans people merely using the restroom in which they are most comfortable. Additionally, the bill defines sex as “determined by anatomy and genetics existing at the time of birth,” which means even trans people who have legally and medically transitioned would be required to use the facility that aligns with their assigned sex at birth.

Proponents of S.B. 270 and other “bathroom bills” claim that such laws are necessary to protect women and children from sexual predators, but there is substantial evidence that these laws actually result in much more harm than good. While there is no evidence that trans people regularly assault cis people in public restrooms, one survey showed that 12% of trans respondents had been harassed in a public bathroom in the previous year, and another 2% had been either physically or sexually assaulted. The impact is especially grim for trans children. One study found that nearly 26% of trans teens reported having been sexually assaulted in the previous year, with that percentage jumping to 36% for trans teens who were denied access to restrooms and locker rooms consistent with their gender.

Trans people are also at an increased risk of physical and sexual assault by police officers. In a survey of trans people who had interacted with the police, 22% reported harassment by the officers, 6% reported physical assault by the officers, and 2% reported sexual assault by the officers. Trans people of color reported much higher rates of abuse by police. Thus, any bill that criminalizes trans existence directly results in trans people being harassed, abused, and assaulted by law enforcement officers.  

 Furthermore, while the drafters of S.B. 270 have attempted to carve out some exceptions to this law, it will still inevitably reduce access to public restrooms for people with disabilities, nonbinary people, gender nonconforming cis people, and people accompanying children. 

S.B. 270 may be a particularly extreme example, but it is far from the only bill trying to erase trans people from public spaces. For example, in Arizona, S.B. 1040 recently passed in the Senate and would provide a private cause of action against a public school for a person who encounters a trans person in a single sex restroom.  While Governor Hobbs has committed to vetoing any anti-trans bills passed by the state legislature, the introduction of S.B. 1040 alone sends a strong message to trans Arizonans—particularly trans youth—that they are unwelcome in the state. You can find contact information for members of the Arizona State House of Representatives here if you would like to express your disapproval of S.B. 1040 or other anti-trans legislation.

Gillian is a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Her social justice interests include juvenile justice, education, and issues impacting the LGBTQ+ community. In her free time, she enjoys playing video games, cooking, and volunteering with animal rescue groups.