Columns » Jay Barth

Worse than N.C.'s bathroom bill

SB 774 extends birth certificate requirement to bathrooms in all public facilities, and that's an original birth certificate, too.

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The basketball teams from the flagship state universities in North Carolina and Arkansas played an exciting game in the NCAA Tournament on Sunday. At the same time, the Arkansas General Assembly was pondering whether to enter a different sort of contest with North Carolina by passing a competing anti-transgender "bathroom bill." Senate Bill 774 is clearly inspired by the infamous House Bill 2 that has served as a disruptive force in the Tar Heel State's politics and economics since its passage a year ago. Last week, state Sen. Linda Collins-Smith (R-Pocahontas), the chief sponsor of the "Physical Privacy and Safety Act," presented her legislation to the Senate Judiciary Committee. Although Collins-Smith pulled it down from a vote because it lacked the votes for a committee green light, the bill's fate remains unclear as there is still time for it to begin moving in the legislative process following revisions to the legislation.

At the hearing, Collins-Smith claimed that her proposed legislation differs from the North Carolina law. She's right. It's more problematic in two important ways.

The bulk of SB 774 is clearly modeled on HB 2, down to the definitions developed for many of the key concepts such as "changing facility" and "government entity" and the exceptions to the overarching policy that only individuals of one sex may use single-sex bathrooms and changing facilities open to multiple persons. Like the North Carolina law, the policy covers bathrooms and locker rooms in any public building across the state.

There are two major differences between HB 2 and SB 774. Both make the legislation even more objectionable than HB 2. First, while HB 2 requires one to use a bathroom matching the sex on his or her current birth certificate, SB 774 requires one to use the facilities matching the sex on the individual's original birth certificate. Assuming the current legislature does not bar the practice (a bill to do that failed in a House committee last week), Arkansas has a fairly straightforward judicial process for changing one's sex on a birth certificate based on a doctor's notice that a sex change has occurred. No matter what one's current birth certificate states, SB 774 requires one to use the bathroom matching the sex on the birth certificate issued at birth, a sex deemed "immutable" by the law. In response to a question from Gretchen Hall, the head of the Little Rock Convention and Visitors Bureau, about how those covered by the legislation might actually effectively weed out those in the bathroom that didn't match their original birth documents, Collins-Smith responded: "It's your job to find a way."

SB 744 is also decidedly more problematic than HB 2 through its inclusion of a section allowing individuals whose privacy was "invaded" by sharing a bathroom with someone of a different sex (at least according to their original birth certificate) to file suit in either state or federal court against the governmental entity that had been slack in its policing of those who enter its bathrooms. The offended party would have up to four years to file suit for the harm done to them and could gain compensation from the state or local governmental entity for any "psychological, emotional, and physical harm." Such expansion of tort liability (and undermining of state sovereign immunity) is ironic considering that one of the state constitutional amendments being sent to Arkansas voters by the legislature sharply limits tort liability dramatically in medical malpractice cases.

In the lead on the opposition to SB 774 to date have been the elements of the business community most likely to feel the impact of a loss of tourism (i.e. the hospitality industry) and government-owned facilities like North Little Rock's Verizon Arena. Their engagement is driven by the impact of HB 2 on North Carolina's economy. In the past year, the state has felt what the Greensboro mayor called a "manmade recession." The hit on North Carolina's economy has been estimated at $630 million with the biggest losers being the low-wage workers relying directly on jobs related to concerts and sporting events that have been canceled because of boycotts of the state. A facility similar to Verizon, the Greensboro Coliseum, claims that the facility and its vendors have lost over $200,000 because of cancelations tied to HB 2.

Behind the scenes, as occurred with the religious freedom legislation in the 2015 session, the state's largest corporations are also pushing against a piece of legislation that could badly damage the state's image. And, if SB 774 begins to move through the legislative process, higher education institutions also no doubt will become more public in their opposition to legislation that is contrary to their values and interests (the national powerhouse Razorback track and field program would be prevented from hosting national championships, for instance).

Perhaps it goes without saying, but it is the "Physical Privacy and Safety" of transgender persons that is put at risk by this singularly discriminatory piece of legislation. Hopefully, the General Assembly will not seek to one-up North Carolina in targeting citizens that instead deserve protection and respect.

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