As we approach the beginning of the 2023 school year, the ACLU of Arkansas commits to continuing to protect students’ rights — including the rights of LGBTQ students — to a learning environment free from bullying and harassment. Acts 317 and 542 put schools in a precarious position between longstanding federal and new state laws, put teachers in jeopardy of committing equal protection violations if they follow state law, and at risk of being treated unlawfully for recognizing students’ rights.
Arkansas Act 542: Names and Pronouns
- Act 542 applies to public schools as well as state colleges and universities.
- Under Act 542, parents or guardians of transgender students under 18 will need to give their student’s school written permission for all school employees to use proper names and pronouns. All students under 18 will need their parent’s permission to use a nickname not derivative of the name on their birth certificate. Contact your student’s school to ask about the school’s procedure.
- If a student’s birth certificate reflects the name the student prefers, school employees must use that name regardless of gender identity.
- Act 542 purports to give school employees and students permission to refuse to honor a trans person’s name and pronouns if they are inconsistent with the gender marker on the person’s birth certificate.
- However, Act 542 violates a number of constitutional rights and federal laws:
- It violates the Equal Protection clause of the 14th Amendment, Title IX and Title VII protections against discrimination as well as student privacy protections by allowing students and school employees to deliberately misgender trans students and employees.
- It violates the First Amendment and Title IX by punishing school employees who affirm their trans students’ gender identities without written permission from a parent.
- Arkansas law allows parents to provide certain documents other than birth certificates to enroll their children in school, including a parent’s affidavit of the date and place of the child’s birth.
- Students are still protected under state law against bullying based on gender identity. Schools cannot allow Act 542 to be used to bully students.
Arkansas Act 317: Restrooms
- Act 317 attempts to require that students on overnight school trips share a room either with people of the same sex assigned at birth, any member of their immediate family, or be provided their own room.
- It does not allow schools to force students to share rooms with people of different gender identities.
- The law also purports to require schools to designate multiple occupancy restrooms or changing areas as “male” or “female” and require students to use these facilities according to their sex assigned at birth or that listed on their birth certificate.
- However, Act 317 also requires schools to provide reasonable accommodations for students who are unwilling or unable to use facilities according to their sex assigned at birth.
- Under Act 317, schools are required to provide trans students with access to another restroom or locker room if they do not want to use the facilities according to their sex assigned at birth.
- Teachers, students, or parents who believe their rights have been violated because of these laws can file a complaint with the ACLU of Arkansas here: https://www.acluarkansas.com/get-help
For more information about other rights at school, see: https://www.aclu.org/know-your-rights/students-rights