Two LGBTQ-specific bills move forward in Arkansas Legislature

Two proposed laws that activists say discriminate against LGBTQ Arkansans progressed in the state Legislature Wednesday.

State Rep. Mary Bentley (R-Perryville) is sponsoring both bills and has said repeatedly that they are meant to protect children from sexual behavior that could emotionally damage them.

House Bill 1156 would restrict bathroom use in public schools based on students’ sex assigned at birth. The rule would apply to multiple-occupancy restrooms and locker rooms, as well as rooms for students on overnight trips.

The bill passed the House of Representatives along party lines with 80 yes votes, 10 no votes and five present votes, a day after passing the House Education Committee.

Earlier on Wednesday, a bill that would limit where drag performances can occur passed the House City, County and Local Affairs Committee and will go to the full House for approval to be sent to the Senate.

The committee approved an amendment to Senate Bill 43 that would define drag as a performance in which someone “exaggerates sexual aspects of the masculine or feminine body for entertainment purposes” and sings, lip-syncs or otherwise performs to entertain an audience. A previous version of the bill defined drag as “exhibit[ing] a gender identity that is different from the performer’s gender assigned at birth using clothing, makeup, or other accessories that are traditionally worn by members of and are meant to exaggerate the gender identity of the performer’s opposite sex.”

Supporters of the bill say it will protect children from sexual content, while opponents say it targets LGBTQ Arkansans and infringes on the First Amendment right to free expression.

The bill classifies a drag performance as an adult business similar to pornography, strip clubs and other sexually explicit content and activities. Such businesses are not allowed to be located within a certain distance of schools, parks and other places children frequent.

Bentley said the bill does not exempt drag performances in private homes.

American Civil Liberties Union of Arkansas policy director Sarah Everett spoke against the bill.

“Laws are meant to be instructive and their meaning clear to the average citizen,” Everett said. “This amendment does nothing to clarify the law or its enforceability.”

There were some audible votes against the bill’s passage through the committee.

The bill passed the Senate last week with a 29-6 party-line vote, and it is expected to pass the House since both chambers have Republican supermajorities.

“Proactive” legislation

Gov. Sarah Huckabee Sanders has said she supports Senate Bill 43, and her office helped compose the amendment to the bill’s definition of drag, Bentley said.

Bentley is one of 14 House members to sign onto the bill. Sen. Gary Stubblefield (R-Branch) introduced the bill on the first day of the legislative session in January, and 15 other senators co-sponsored it.

Six people spoke against the bill and one spoke for it in Wednesday’s committee meeting. Similarly, seven people spoke against the bill and one spoke for it in the Senate City, County and Local Affairs Committee meeting on Jan. 19.

LGBTQ activists have also protested Senate Bill 43 with public performances by drag artists and transgender Arkansans, saying it would be illegal to do so if the bill becomes law.

Drag has a long history as performance art, House Minority Leader Tippi McCullough (D-Little Rock) said. She asked Bentley for specific anecdotes about drag performers behaving inappropriately in front of children in Arkansas.

Bentley said she heard that drag performers threw contraceptive pills into a crowd that included children at an LGBTQ pride parade in Little Rock. Other than that, she said she was not aware of specific instances in the state, “but that doesn’t mean it hasn’t happened.”

“We pass bills all the time proactively to protect our kids,” she said. “I don’t want to wait until it’s here, until I have parents livid [about] what’s going on with their kids here in Arkansas.”

Parents have been upset about overtly sexual performers for decades, but that has not stopped them from performing, said Gary Sullivan, the legal director of the ACLU of Arkansas who spoke against the bill. He cited a specific male performer who wore revealing clothing, styled his hair deliberately and moved in a provocative manner onstage.

“My congratulations to Sen. Stubblefield and Rep. Bentley,” Sullivan said. “You found a way to do what parents couldn’t do 60 years ago. You found a way to outlaw Elvis Presley.”

Legality and discrimination concerns

Several legislators and witnesses against the bill expressed concern that the language was too vague and amounted to government overreach.

Bentley said she did not “want to pass a bill for theater” and believes it will hold up in court. She said she received input from Sanders’ office, Arkansas Attorney General Tim Griffin’s office and the Alliance Defending Freedom while drafting the bill. ADF is a conservative religious-freedom advocacy group that has opposed LGBTQ rights efforts.

However, the ACLU of Arkansas believes the bill will be challenged and overturned in court, Everett said.

“Your constituents expect you to pass bills that comply with the Constitution, not put our rights in jeopardy [or] use our tax dollars to discover that what we have told you is true, it’s unconstitutional,” Everett said. “But that is the goal, ultimately, of this bill: to curb the free speech and expression of the LGBTQ community and their allies. Fear is running this Legislature and has been for a long time, and it’s time to stop.”

Courtney Frierson, a Little Rock therapist and social worker, said the cost of the eventual court case contradicts the Republican Party’s values of “small government and fiscal responsibility.” 

She described SB43 as “outdated gender policing” rooted in 19th century and 20th century public policy.

“This drag bill is an old story,” Frierson said. “We’re tired. We’ve heard this one before, and we’ve already resisted.”

Judson Scanlon, a 60-year-old transgender Arkansan, expressed fear of being targeted simply for being transgender in public where children are present.

“This bill chooses to go to arbitrary as opposed to defined [rules], and we have fought that in the gay and lesbian community for years,” Scanlon said.

Alleged misunderstanding

Jennifer Lancaster, the sole witness for SB43, said she believes drag is inherently sexual and opposes it as a mother.

M.D. Hunter, who performs as the drag queen Athena Sinclair, disagreed. Hunter appeared in plainclothes Wednesday but previously appeared in drag before the Senate City, County and Local Affairs Committee in January to testify against the bill.

Hunter said the bill is based on a fundamental misunderstanding of drag, which is “simply art” and not sexual at all.

Rep. David Ray (R-Maumelle) asked why it is seen as “necessary” for kids to be in the audience at drag performances. Hunter said this is not true.

“When people usually perform in front of children, they’re dressed extremely appropriately, and it’s only happening so those kids can come and see somebody that is like them,” Hunter said.

Bentley said her constituents frequently expressed concerns to her about kids’ presence at drag shows during her reelection campaign last year. Hunter said Bentley’s constituents should not be worried about this because there are no drag shows in the district, which is made up of Perry County and parts of Faulkner, Saline and Yell counties.

McCullough said none of her constituents in Little Rock have expressed any concerns about drag shows. She added that drag performers have been pillars of the LGBTQ community “since the beginning of time” and that SB43 targets the community regardless of what its supporters say.

“I do believe there is often a fear of what people don’t understand, and I do believe that freedom is not alive and well,” she said.

School bathroom restrictions

McCullough also voiced opposition to House Bill 1156 on the House floor Wednesday afternoon.

Sanders has repeatedly named education as a top priority for her administration. McCullough is a former teacher and said HB1156 hinders education instead of enhancing it.

“Instead of focusing on keeping our schools on track, principals, superintendents and teachers will have to worry about keeping their bathrooms in regulation,” she said.

Superintendents, principals, charter school administrators or teachers would be fined at least $1,000 if they are found to violate the policy, according to an amendment adopted earlier this week.

The bill originally stated that public schools would lose 5% of their state funding if they did not comply with the bathroom policy. A subsequent amendment stated that noncompliance would cost principals, superintendents and charter school administrators 15% of their salaries the following fiscal year.

The bill also requires schools to “provide a reasonable accommodation” to anyone “unwilling or unable to use a multiple occupancy restroom or changing area” based on their biological sex, such as a single-occupancy gender-neutral restroom.

Students with gender dysphoria already used gender-neutral restrooms in the Conway School District before the school board enacted the same bathroom policy in October 2022. The public response to the policy amounted to “harassment” and a “distraction” that made it difficult for the Conway School District to focus on education, so a statewide bill should prevent the same thing from happening in other districts, Bentley said.

Two Conway school board members expressed their support for the bill at last week’s House Education Committee hearing. Three other people spoke for the bill and 13 people spoke against it.

Rep. Vivian Flowers (D-Pine Bluff), a member of the committee, said she found the Conway school board members’ testimony “compelling” but was concerned that the bill would do nothing to prevent bullying and that it might eventually be struck down in court.

She also said small rural school districts might not have single-occupancy restrooms or the money to build them in order to comply with the policy.

“Bullying, local control and constitutional issues are why I will vote present today,” she said.

Eighty of the 82 House Republicans voted for the bill while two did not vote. Of the 18 House Democrats, 10 voted no, five voted present and three did not vote.