By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Sometimes, it’s more about what the government can do instead of what it should do.

Such might be the case with the topic Governor Asa Hutchinson was hoping to avoid, a bathroom bill, the Arkansas Physical Privacy and Safety Act.

Senate Bill 774 by Sen. Linda Collins-Smith, R-Pocahontas, was discussed in the Senate Judiciary Committee Wednesday but not voted upon because a potential yes vote, Sen. Greg Standridge, R-Russellville, wasn’t present and wasn’t available by phone. It will probably be discussed again Monday as this year’s legislative session enters the home stretch.

The bill requires all multi-person restrooms and changing facilities in government buildings to be designated for one gender, defined as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.” The bill requires government agencies to take “reasonable steps” to prevent individuals from entering the wrong bathrooms. Government entities, including schools, could be sued up to four years after an unwanted intrusion, with plaintiffs able to recover damages “for all psychological, emotional, and physical harm suffered.”

Collins-Smith has strong feelings about whether a person born male should use a ladies’ restroom, and so do a lot of Arkansans. She said the bill is necessary to protect bathroom users’ privacy, dignity and safety.

Speaking against the bill were Michael Marion, general manager of Verizon Arena, and Gretchen Hall, president and CEO of the Little Rock Convention and Visitors Bureau.

They made some what-should-the-government-do arguments. When North Carolina passed a bathroom bill, the state found itself the new ground zero in the culture war. Paypal cancelled plans to open a 400-job global operations center, the NBA and NCAA cancelled events, and entertainers such as Bruce Springsteen cancelled concerts. Even though Collins pointed out that her bill is much less restrictive than North Carolina’s – it explicitly doesn’t apply to private entities – Marion and Hall fear a similar backlash against Arkansas, as does Hutchinson.

That’s a legitimate economic argument. On the other hand, how much of a state’s policies should be based on the political beliefs of outsiders?

Marion and Hall also made some what-can-the-government-do arguments. Marion said that when Joyce Meyer Ministries appeared at the publicly owned Verizon Arena, some of the men’s restrooms temporarily were converted to women’s restrooms, and some men mistakenly walked into them. Meanwhile, sometimes women use the men’s room because they don’t want to wait in line at the ladies’ room. What happens in those situations? Hall pointed out that some people born one gender look completely like the other, so how do you even know if they are using the wrong restroom, much less keep them out? Collins-Smith said entities comply with other rules and would figure out how to comply with this one.

This issue isn’t going away. Last year, the Obama administration released a heavy-handed guidance telling schools across the nation to let transgender students use bathrooms and locker rooms of their choice, which the Trump administration has rescinded. The same day the bill ran in the Senate Judiciary Committee in Arkansas, the Texas Senate approved a bathroom bill applying to public buildings. It faces a tougher road in the Texas House.

This may be a “can do” instead of a “should do” situation where we’re just going to have to keep doing what we’ve been doing without a new government solution. Police cannot patrol millions of bathrooms across the country making sure people use the right one – or that those inside welcome them. It’s not against the law for people to use the wrong bathrooms, but laws do apply for what they do inside them. We’ll continue to put up signs for male, female, or either, and people will frequent the places where they feel welcome and safe. Meanwhile, entities will respond to prevailing cultural norms. More establishments will do what my new local Kroger did: Install only gender-neutral, private, locking bathrooms.

During the committee meeting, Sen. Jeremy Hutchinson, R-Little Rock, worried that a lawsuit could arise from an accidental intrusion, which all of us have experienced – including, ironically, me. The day before the meeting, I opened what I thought was a committee room door but instead was the ladies’ restroom.

Naturally, I did what almost everyone else does in that situation – turn around and escape. While we can argue about whether a person born male can ever use the ladies’ room, I know this one can’t.