Anti-trans bathroom bill advances, despite criticism and likely veto

Students could sue their school if they have to share a bathroom with a trans classmate

By: - February 16, 2023 9:56 am

Two women show their support for abortion access and the LGBTQ community during a protest of anti-drag legislation at the state Capitol in Phoenix on Jan. 22, 2023. Photo by Gloria Rebecca Gomez | Arizona Mirror

Republican lawmakers approved a measure that critics worry could heighten discrimination against trans students, based on the argument that keeping trans students separated from their peers preserves modesty and keeps women safe. 

Under Senate Bill 1040, schools would be required to provide alternate accommodations for those who are “unwilling or unable” to use a bathroom or locker room that matches their biological sex. 

And students who believe the school allowed them to share a facility with someone of the opposite biological sex would be allowed to sue the school and recover damages for their “psychological, emotional and physical harm.” 


Sen. John Kavanagh, who sponsored the measure, said it acts as a compromise between trans students and those who might feel uncomfortable sharing private areas with them. 

“Modesty is a basic, universal and historic human instinct,” he told the Senate Education Committee on Feb. 15. “It goes back to Adam and Eve hiding behind the bush after the apple was eaten.” 

The Fountain Hills Republican is no stranger to anti-trans and anti-LGBTQ legislation. In 2013, shortly after Phoenix expanded its non-discrimination ordinance, he championed a measure that would have criminalized trans people for simply entering bathrooms inconsistent with their biological sex. This session, he’s also introduced bills targeting preferred pronoun use and drag shows in schools

Sen. Christine Marsh, D-Phoenix, questioned whether providing accommodations for uncomfortable students, instead, wouldn’t achieve the same goal, without singling out the trans community. 

Kavanagh rebutted that such a bill would represent a waste of resources, considering how small the transgender population is — an irony that was not lost on the audience of trans Arizonans and allies who laughed in response. Marsh noted that a majority of students don’t have an issue with their trans classmates: Surveys indicate that Gen-Zers and Millennials resoundingly accept a broader gender spectrum compared to older generations.

But Kavanagh said he isn’t convinced by that claim, adding that, even if that is the case, female students are still imperiled by sharing bathrooms and locker rooms. 

LGBTQ kids need protection from bullies and violence, not adults targeting and bullying them too

That alarmist sentiment was echoed by supporters of the bill. 

Lisa Fink, a conservative activist and member of the far-right Protect Arizona Children Coalition, cited a case in Virginia in which a boy entered a school bathroom wearing a skirt and sexually assaulted a classmate. That case, and the Virginia school district’s policy of allowing transgender students to use bathrooms that best fit their gender identity, has been widely referenced by critics of inclusive policies — despite the fact that the boy does not identify as trans, and the school policy wasn’t implemented until months later

The fear that trans-friendly policies will open the door to an increase in assaults is groundless. Multiple investigations of the more than 200 municipalities and 19 states that have inclusive non-discrimination ordinances have found no such trends. 

In fact, transgender people are at a much higher risk of facing violence than non-transgender people. And limiting their access to public facilities that match their gender identity inevitably heightens that likelihood. A Harvard study found that transgender students who attend schools with restrictive bathroom policies in place faced an even more elevated danger of being sexually assaulted

Elijah Watson, a public education advocate and member of the student coalition Keep Arizona Blue, said the bill likely violates constitutional and federal protections. The Fourteenth Amendment, he noted, guarantees equal protection for all U.S. citizens, and the Title IX Education Amendments of 1972 prohibit any school that receives federal funding from engaging in discrimination on the basis of sex, sexuality or gender identity. 

Watson asked lawmakers on the panel to vote against the bill, saying approving it would only serve to make trans Arizonans feel unwelcome in the state, and likely amplify public hostility towards them. The bill is almost certain to fall afoul of Gov. Katie Hobbs’ veto pen, as she and her staff have dismissed similar anti-trans legislation

“This bill will send a message that the trans community is something to be feared and that discrimination is something that is circumstantially permitted,” he said. “This bill is a step backwards that will only lead to discrimination against trans and non-gender conforming youth.” 

Cathi Herrod, the president of anti-LGBTQ organization Center for Arizona Policy, refuted Watson’s claims of unconstitutionality, pointing to the U.S. Supreme Court’s refusal to take on the issue in Bostock v. Clayton County and a recent federal ruling that upheld a similar policy in Florida. 

“They’re not constitutional issues. These are privacy issues, and it’s a win-win for all involved,” she assured lawmakers. 

The bill cleared the committee 4-2, along party lines. It goes next before the full Senate for consideration. 

Marsh, who voted against it, lamented that Kavanagh was unwilling to take a more “empathetic” approach. She noted that data shows trans and LGBTQ youth, who are more than four times as likely as their peers to attempt suicide, face a higher risk of contemplating doing so in non-gender affirming environments. It’s important to keep that in mind when crafting legislation that could potentially contribute to that risk, she said. 

“They are our kids, and to treat them as second class students when they are already so marginalized — I find (it) to be really tragic,” Marsh said. 


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Gloria Rebecca Gomez
Gloria Rebecca Gomez

Gloria Gomez joined the Arizona Mirror in August 2022. She graduated in 2022 with bachelor's degrees in journalism and political science, with a Spanish minor.