It may be the first thing you do when you wake up in the morning and the last thing you do before bed. You’ll frequent it several times throughout the day too. But something as commonplace as going to the bathroom has become a hot-button issue that has stirred up great controversy, specifically bathrooms in public schools.

On March 22, Arkansas Governor Sarah Huckabee Sanders signed into law a bill that restricts students’ use of restrooms or locker rooms that do not match with the biological sex listed on their birth certificate.[i] While applicable to all students, this law is the result of the efforts of the GOP initiative to restrict LGBTQ rights.[ii] Sanders’s spokesperson, Alexa Henning stated, “‘[t]he governor has said she will sign laws that focus on protecting and educating our kids, not indoctrinating them and believes our schools are no place for the radical left’s woke agenda. . . . Arkansas isn’t going to rewrite the rules of biology just to please a handful of far-left advocates.’”[iii]

Arkansas is not the only state to enact laws that prohibit bathroom inclusion for youth; Alabama, Oklahoma, and Tennessee have implemented restrictions.[iv] Lawsuits have been filed in Oklahoma and Tennessee challenging these restrictions.[v] However, other states appear to be following suit and this wave of bathroom banning appears to be ramping up. In Iowa, similar legislation known as the “Bathroom Bill” is set to appear before Governor Kim Reynolds.[vi]

Arkansas bill sponsor and Republican state Representative Mary Bentley, “said on Facebook. . .  [this]is ‘how we restore our biblical values in our Nation’ and that it will ‘keep Arkansas children safe and comfortable in their bathrooms.’”[vii] Despite the blatant First Amendment issues of separation of church and state from these comments, the real issue is that this bill is not promoting safety or comfort for all students. First and foremost, these laws target an already disadvantaged class of students, transgender and non-binary youth. A reported “75.1% of transgender students feel unsafe at school because of their Gender expression [and] 63.4% of transgender students reported avoiding bathrooms.”[viii] School bathrooms are already considered to be the least safe space in educational institutions for LGBTQ youth and creating another barrier for these youth to use the bathroom.[ix]

It is difficult to visualize how a student’s choice of bathroom truly affects students. Iowa Representative Austin Baeth emphasized “‘there has been no increase in bathroom-related assaults since Iowa allowed transgender people to use their preferred facilities [which] shows that this is addressing a problem that doesn’t exist.”[x]  And while I can sympathize with the idea that a student, would not want to change in front of a classmate of a different biological sex, Arkansas has provided no meaningful alternative to keep both cis and transgender youth safe and comfortable. The Arkansas law has not provided any funding for schools to build gender neutral restrooms or facilities, and with so many Arkansas school districts in deep poverty it is unlikely they will spend precious funds to build these spaces without state funding.[xi]

Arkansas’ law also places the burden of enforcement on superintendents, principals, and teachers who could face a minimum fine of $1,000 if they fail to comply with the new law.[xii] Therefore, in what is already an overburdened and underpaid profession teachers will now have to intrude into the bathroom use of their students or face steep financial punishment. Arkansas is already experiencing a severe teacher shortage, with rural school districts hit the worst, and I can only predict that teacher burdensome laws like this will do nothing to improve the situation.[xiii]

Furthermore, Arkansas and other states that implement laws that require additions, such as new bathrooms, will have to find a way to fund it.[xiv] This funding can be incredibly difficult for school districts considering the financial storm that schools across the country are facing.[xv] For some, it may even feel as if funding these bills and laws is a form of financial wastefulness. Unfortunately, for the LGBTQ population and its allies 2023 has seen a sharp rise in the number of anti-LGBTQ bills at the state level. As of March 8, there were 385 anti-LGBTQ proposed bills in the United States.[xvi] This was a sharp uptick from the 162 proposed in 2022 and the mere 18 in 2018.[xvii] Therefore, it is important to recognize that bills like these are not only a problem for those in the LGBTQ community in Arkansas, but that they have the potential to impact numerous states across the country.

[i] Shawna Mizelle and Devon M. Sayers, Arkansas Governor Signs Bill That Restricts Transgender Students’ Bathroom Use in Schools, CNN (Mar. 22, 2023, 3:57 PM), [].

[ii] Id.

[iii] Id.

[iv] Andrew DeMillo, New Arkansas Law Restricts School Bathroom Use by Transgender People, PBS (Mar. 22, 2023, 1:01 PM), [].

[v] Id.

[vi] Robin Opsahl, Lawmakers OK ‘Bathroom Bill’ Restricting Transgender Students’ Use of School Restrooms, iowa cap. dispatch (Mar. 16, 2023, 6:23 PM), [].

[vii] Mizelle & Sayers, supra note 1.

[viii] Gender Spectrum, Transgender Students and School Bathrooms, [].

[ix] Kate Ryan, School Bathroom Rules Tied To LGBT+ Students' Risk of Sexual Violence: Study, Reuters, (May 6, 2019, 5:13 PM), [].

[x] Opsahl, supra note 6.

[xi] DeMillo, supra note 4. Baker Kurrus, Charter Schools and Vouchers Won’t Solve Poverty, and Poverty Is the Problem, Ark. Times, (Jan. 27, 2023, 12:58 PM), [].

[xii] Mizelle & Sayers, supra note 1.

[xiii]Lara Farrar and Nick Popowitch, Capitol & Scott: Arkansas' Teacher Shortage, Ark. Democrat Gazette (Oct. 12, 2022, 3:43 PM), [].

[xiv] DeMillo, supra note 4.

[xv] Mark Lieberman, Schools Are Heading Into a Perfect Financial Storm, Education Week (Feb. 2, 2023), [].

[xvi] Ella Ceron, 2023 Is Already a Record Year for Anti-LGBTQ Bills in the US, Bloomberg (Mar. 8, 2023, 1:53 PM), [].

[xvii] Id.

Thursday, March 30, 2023