Transgender bathroom, anti-affirmative action bills advance

A bill that would require Arkansas public schools to provide students gender-exclusive bathrooms and changing areas or otherwise provide single-occupancy facilities passed the House Education Committee on Tuesday (Jan. 31).

A Senate panel also approved a measure that would reduce affirmative action procedures in the state.

In the House Education Committee, HB 1156, a transgender-related school bathroom bill, passed on a voice vote with a large majority of committee members voting yes. The bill, sponsored by Rep. Mary Bentley, R-Perryville, would require public school districts and open-enrollment public charter schools to designate multiple occupancy restrooms and changing areas based on sex. Schools would be required to provide a single occupancy restroom or changing area for individuals unable or unwilling to use a sex-designated multi-occupancy restroom.

The bill defines “sex” as “the physical condition of being male or female based on genetics and physiology.” It states that schools can rely on students’ “original birth certificate issued at or near the time of his or her birth.”

Schools that sponsor overnight student trips would be required to ensure students share sleeping quarters with a member of the same sex, unless the member of the opposite sex is a member of the student’s immediate family. Schools would be required to adopt policies in line with the bill. Allegations of noncompliance by schools would be referred by filing a formal complaint with the Professional Licensure Standard Board.

If found specifically to be in noncompliance, the superintendent, school principal, teachers and classroom supervisors would be subject to minimum fines of $1,000 along with additional sanctions.

Parents and legal guardians would have a cause of action against schools if their child encountered a member of the opposite sex in a restroom or changing area who received permission to be there from the superintendent or principal. The same would apply if their child were required to share sleeping quarters with a member of the opposite sex.

The committee heard testimony from numerous witnesses Jan. 26 but did not vote because there hadn’t been time to complete a fiscal impact statement after Bentley amended the bill.

Under the bill as presented Jan. 26, the superintendent and principal would have faced a 15% salary reduction if a school were found to be noncompliant. Bentley amended that part before presenting it Jan. 31. The bill as originally filed would have cut funding for noncompliant schools 5%, but Bentley said that would have hurt students.

Dr. Mike Hernandez, the Arkansas Association of Educational Administrators’ executive director, said in an interview that the AAEA originally supported the bill because it added clarity to the issue, but then it expressed concerns once the penalties were added. His group will meet Feb. 1 to vote on whether it supports the amended version.

“We initially supported the bill because it provides consistency statewide in a gray legal area,” he said. “However, when there were some amendments made regarding penalties, we had some concerns and reached out to the sponsor, and so the sponsor did add those amendments that addressed our concerns.”

He later added, “Instead of this fight being played out at every local school board like it seems to have had some issues around the state, this at least gives a little bit more clear direction on what the districts’ stances should be.”

AFFIRMATIVE ACTION
The Senate State Agencies & Governmental Affairs Committee took up SB 71 by Sen. Dan Sullivan, R-Jonesboro. The measure says the state “shall not discriminate against, or grant preferential treatment to, an individual or group on the basis of race, gender, color, ethnicity, or national origin in matters of state employment, public education, or state procurement.” It was amended in committee to add about nine pages of additional language.

Sullivan said his bill seeks to eliminate discrimination by removing language and programs in the state that tie opportunities to race and gender. It would not affect private business.

“We’re effectively eliminating affirmative action and in reality making affirmative action available to everyone, not just a select group,” Sullivan said.

He said most of the impact would be in the field of education by removing preferential treatment. For instance, the bill eliminates language for public and charter schools as well as higher education institutions to have a “Minority Teacher and Administrator Preparation and Recruitment Strategic Plan; minority retention plans, or affirmative action plans.” Sullivan said seven other states have passed similar measures and “at this time” have not been declared unconstitutional.

Sullivan used as an example a donor wanting to award a scholarship based on specifics for a college or university.

“This does not affect foundations. If that individual wanted to write a check for a certain profile, you know, ‘I want to write a check for a scholarship that promotes “fill in the blank” – maybe a race or a gender’ – that would be very questionable just like we wouldn’t want the state saying this scholarship applies to anybody except people of a certain gender or race,” he said.

Sen. Clarke Tucker, D-Little Rock, raised concerns about the bill. He said the bill could make the work done by the Arkansas Economic Development Commission to help minority and women-owned businesses receive contracts illegal.

“I have a number of concerns,” Tucker said. “If this passes through the process and becomes law, then the state of Arkansas is saying ‘that discrimination no longer exists. Racism no longer exists. Sexism no longer exists. And there’s nothing more we need to do to make sure that people who have been historically discriminated against and historically disenfranchised – there’s nothing more we need to do to put them on equal footing with everyone else.’ I think that statement would be absolutely wrong, morally and factually.”

“You’ve effectively accused me of racism,” Sullivan replied. “And the statements that you’re making that racism isn’t over – I agree. And sexism isn’t over, and you’re effectively again saying that this bill denies that and since I’m presenting the bill that I’m guilty of those things. I disagree with that strongly and I don’t think the bill does this… This bill puts everyone on an equal field.”

“I did not intend to accuse of racism, Senator. I do think the message the bill sends is that racism is over. You can disagree with that, and I respect that, but I don’t think that is an accusation of racism – at least that’s not the way I intended it,” Tucker said.

After a motion and a second from Sens. John Payton, R-Wilburn, and Jim Dotson, R-Bentonville, the State Agencies panel approved the measure on a voice vote. It will now be considered by the full Senate.

LOCAL INCOME TAX, RURAL HOSPITALS
In other action from the state capitol on Tuesday, the House passed HB 1026, which prohibits local governments from enacting an income tax. The bill passed with 79 votes, while 10 opposed it, and 11 either didn’t vote or voted present. The measure now heads to the Senate for consideration.

Also, the House Public Health, Welfare and Labor Committee advanced a bill creating a designation for rural emergency hospitals. House Bill 1127, by Rep. Lee Johnson, R-Greenwood, would create a statewide “rural emergency hospital” designation. The designation would be available for qualifying facilities that provide full-time emergency services and have a transfer agreement with Level 1 or Level 2 trauma center.

It will allow hospitals a state pathway to qualify for a new federal rural emergency hospital designation where they could bill Medicare for outpatient services at 105% the normal rate.

Johnson estimated between 8-10 Arkansas hospitals would be interested in trying to qualify for the designation, depending on how the math works out for them. Some hospitals instead might want to maintain their critical access designation.

Rep. Justin Gonzalez, R-Okolona, expressed concern with a section of the bill that appeared it might limit eligibility to facilities open by Dec. 27, 2020. He asked if newer hospitals opening after that date would be eligible.

The bill will now be considered by the full House.

Editor’s note: Steve Brawner and Roby Brock contributed to this article.