Text of AR SB 774 (2017)

Stricken language would be deleted from and underlined language would be added to present law. *SRC087* 02-21-2017 10:06:39 SRC087 State of Arkansas 1 91st General Assembly A Bill 2 Regular Session, 2017 SENATE BILL 774 3 4 By: Senator Collins-Smith 5 6 For An Act To Be Entitled 7 AN ACT CONCERNING PUBLIC BUILDINGS; TO CREATE THE 8 ARKANSAS PHYSICAL PRIVACY AND SAFETY ACT; TO DECLARE 9 AN EMERGENCY; AND FOR OTHER PURPOSES. 10 11 12 Subtitle 13 TO CREATE THE ARKANSAS PHYSICAL PRIVACY 14 AND SAFETY ACT; AND TO DECLARE AN 15 EMERGENCY. 16 17 18 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 19 20 SECTION 1. Legislative intent and purpose. 21 (a) This act does not prohibit, limit, or restrict the ability of a 22 private entity to adopt and implement an internal policy concerning the 23 designation or use of the private entity's restroom, shower, or changing 24 facility. 25 (b) When awarding a contract for the purchase of goods or services, a 26 political subdivision shall not consider whether a private entity has adopted 27 a policy concerning the designation or use of the private entity's restroom, 28 shower, or changing facility. 29 (c) The purpose of this subchapter is to: 30 (1) Further the state’s interest in protecting all persons in 31 public schools, colleges, and government buildings in this state; 32 (2) Provide for the privacy and safety needs of all persons in 33 public schools, colleges, and government buildings in this state; and 34 (3) Maintain order and dignity in restrooms, locker rooms, 35 showers, and other facilities where people may be in various states of 36 SB774 2 02-21-2017 10:06:39 SRC087 undress in the presence of others. 1 2 SECTION 2. Arkansas Code Title 22, Chapter 3, is amended to add an 3 additional subchapter to read as follows: 4 Subchapter 21 — Arkansas Physical Privacy and Safety Act. 5 6 22-3-2101. Title. 7 This subchapter shall be known and may be cited as the “Arkansas 8 Physical Privacy and Safety Act”. 9 10 22-3-2102. [Reserved.] 11 12 22-3-2103. Definitions. 13 As used in this subchapter: 14 (1) “Changing facility” means a place where a person may be in a 15 state of undress in the presence of others, including a locker room, dressing 16 room, or shower room; 17 (2) “Government building” means a building or structure that is 18 owned, leased, or otherwise under the control of a government entity; 19 (3) “Government entity” means a state agency, a political 20 subdivision of the state, a public primary or secondary school, or a public 21 institution of higher education; 22 (4) "Private entity" means a corporation, business, nonprofit 23 organization, or other private employer; 24 (5) “Restroom” means a facility that includes one (1) or more 25 toilets or urinals; and 26 (6)(A) “Sex" means a person’s immutable biological sex as 27 objectively determined by anatomy and genetics existing at the time of birth. 28 (B) A person’s original birth certificate may be relied 29 upon to establish his or her sex. 30 31 22-3-2104. Designation and use of restrooms and changing facilities in 32 government buildings. 33 (a) Every restroom and changing facility located in a government 34 building that is accessible by multiple persons at the same time shall be 35 designated for use only by members of one (1) sex. 36 SB774 3 02-21-2017 10:06:39 SRC087 (b)(1) A restroom or changing facility that is located in a government 1 building and that is designated for one (1) sex under subsection (a) of this 2 section shall be used only by members of the designated sex. 3 (2) Except as provided under subsection (c) of this section, a 4 person shall not enter a restroom or changing facility that is designated for 5 one (1) sex unless he or she is a member of the designated sex. 6 (3)(A) The government entity with authority over the government 7 building shall ensure that all restrooms and changing facilities located in 8 the government building provide privacy from members of the opposite sex. 9 (B) In other settings in a government building where a 10 person may be in a state of undress in the presence of others, the government 11 entity with authority over the government building shall provide separate, 12 private areas designated for use by persons based on their sex, and a person 13 shall not enter these private areas unless he or she is a member of the 14 designated sex. 15 (c) This section does not apply to a person who enters a restroom or 16 changing facility designated for the opposite sex: 17 (1) For custodial or maintenance purposes, when the restroom or 18 changing facility is not occupied by a member of the opposite sex; 19 (2) To render medical assistance; or 20 (3) During a natural disaster, emergency, or when necessary to 21 prevent a serious threat to order or safety. 22 (d) This section does not prohibit a government entity from: 23 (1) Adopting policies necessary to accommodate individuals with 24 disabilities or young children in need of physical assistance when using 25 restrooms or changing facilities located in government buildings; or 26 (2)(A) Providing certain accommodations, including without 27 limitation a: 28 (i) Family restroom; or 29 (ii) Single occupancy restroom or changing facility 30 that a person may request due to a special circumstance. 31 (B) However, the accommodation under subdivision (d)(2)(A) 32 of this section shall not allow a person access to a restroom or changing 33 facility that is designated for use by members of the opposite sex at a time 34 when members of the opposite sex are present or may be present. 35 36 SB774 4 02-21-2017 10:06:39 SRC087 22-3-2105. Private cause of action — Remedies. 1 (a) A person has a private cause of action against the government 2 entity that controls a government building if: 3 (1) He or she is in a restroom or changing facility located in a 4 government building that is designated for used only by members of one (1) 5 sex and, being of that designated sex, encounters a member of the opposite 6 sex; and 7 (2) Except as otherwise provided under § 22-3-2104, the 8 government entity: 9 (A) Gave the member of the opposite sex permission to use 10 the restroom or changing facility in subdivision (a)(1) of this section; or 11 (B) Failed to take reasonable steps to prohibit the member 12 of the opposite sex from using the restroom or changing facility in 13 subdivision (a)(1) of this section. 14 (b) A claim arising under this section shall be brought in the state 15 circuit court or federal district court where the claimant resides or where 16 the government entity is located at the time of filing. 17 (c) A civil action brought under this section shall be initiated 18 within four (4) years after the violation occurred. 19 (d) Claimants under this section who prevail in court shall be 20 entitled to recover reasonable attorney's fees and costs, and may recover 21 monetary damages for all psychological, emotional, and physical harm 22 suffered. 23 (e) This section does not limit other remedies at law or equity 24 available to the claimant against the government entity who controls the 25 government building. 26 27 SECTION 3. EMERGENCY CLAUSE. It is found and determined by the 28 General Assembly of the State of Arkansas that the state has an interest in 29 protecting all persons in public schools, colleges, and government buildings 30 in this state; that the state should seek to provide for the privacy and 31 safety needs of all persons in public schools, colleges, and government 32 buildings in this state; and that this act is immediately necessary to 33 maintain order and dignity in restrooms, locker rooms, showers, and other 34 facilities where people may be in various states of undress in the presence 35 of others. Therefore, an emergency is declared to exist, and this act being 36 SB774 5 02-21-2017 10:06:39 SRC087 immediately necessary for the preservation of the public peace, health, and 1 safety shall become effective on: 2 (1) The date of its approval by the Governor; 3 (2) If the bill is neither approved nor vetoed by the Governor, 4 the expiration of the period of time during which the Governor may veto the 5 bill; or 6 (3) If the bill is vetoed by the Governor and the veto is 7 overridden, the date the last house overrides the veto. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36