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Arizona House forges ahead with war on diversity despite constitutionality doubts

Arizona Republicans have been unanimous in efforts to mandate where trans kids go to the restroom and to stymie diversity and inclusivity.

PHOENIX (CN) — An Arizona House rules attorney flagged two bills aimed at quashing diversity efforts and regulating gender expression in public institutions as potential constitutional violations, but the House committee on rules recommended passage in a Republican-led vote on party lines.

The bills — one would bar public entities from spending money on or requiring participation in a diversity, equity and inclusion program and the other would prohibit students at public schools from using bathrooms that don’t correspond with their biological sex — likely violate multiple amendments in the Bill of Rights as well as the Civil Rights Act of 1964, rules attorney Tim Fleming said. 

Each bill has received exclusively yes votes from Republicans and no votes from Democrats in each stage of the process.

Not only does Republican state Senator Jake Hoffman’s SB1694 bar public entities, including government offices, schools, and universities, from spending money on or requiring a diversity, equity and inclusion program, but it also bars those entities from establishing “an office or individual whose duties include coordinating a DEI program.”

Finally, the controversial bill stipulates that an entity cannot “promote or adopt, as their official position, any theory of unconscious or implicit bias, cultural appropriation, allyship, transgenderism, microaggressions, microinvalidation, group marginalization, anti-racism, systemic oppression, ethnocentrism, structural racism or inequity, social justice, intersectionality, neopronouns, inclusive language, heteronormativity, disparate impact, gender identity or theory, racial or sexual privilege or any related theory.”

Hoffman, from Queen Creek, is unavailable for media comment, his assistant said. 

The bill passed through the state Senate16-12 with two abstentions, and received a 5-4 do-pass recommendation from the House government committee last week.

Fleming warned the committee Tuesday morning that the bill, if enacted, could violate First Amendment freedom of speech and 14th Amendment equal protection rights. State Representative Chris Mathis, a Democrat from Phoenix, called it “viewpoint discrimination.”

A lawsuit filed in Florida challenged a bill similar to SB1694 in 2022. The ACLU and the Legal Defense Fund sued the Florida Board of Governors in 2022 over a bill restricting school teachers from discussing certain topics pertaining to racism and sexism. A federal judge barred enforcement and an appeal is pending in the 11th Circuit.

Of SB1694, Fleming said, “We can’t say for sure that this measure is constitutional.”

State Senator John Kavanagh, a Republican From Fountain Hills, framed SB1040 as an accommodation to transgender and nonbinary students who are uncomfortable using the bathroom or sleeping quarters corresponding to their biological sex. But that accommodation falls short of allowing them to use the bathroom they’re most comfortable in.

Instead, the bill would require a school to provide a single-occupancy bathroom, locker room or other changing facility to students who request it. 

Kavanagh, along with the bill’s supporters, said the bill aims to “balance the needs” of trans and nonbinary students with the need to protect other children. Multiple people who spoke on behalf of the bill in a February committee meeting pushed unfounded and debunked claims that transgender people use their access to the opposite sex’s bathrooms to sexually assault people. 

Democrats said the bill is harmful because it reinforces that myth, and that it increases discrimination in schools because it requires students to identify themselves as trans and nonbinary to school authorities before they’re comfortable doing so. 

The bill passed through the state Senate in February on a 16-14 vote, and recently received a 6-4 do-pass recommendation from the House education committee. 

Fleming said the bill raises concerns regarding both the Civil Rights Act and Title IX.

“In the Ninth Circuit, the case law has developed in a way that we know that equal access to restrooms is a significant and basic condition of employment,” Fleming told the committee. “And that segregating bathroom access based on a person’s transgender status may be an issue and could be viewed as being materially adverse.”

However, the reason for the discriminating action has to be targeted at the victim, in this case trans and nonbinary people, directly. So privacy and safety concerns may be enough to make the potential law acceptable, Fleming said. 

“The law is developing,” he said. “We don’t know ultimately what the Supreme Court will decide on this.”

Title IX is more clear, he said. Discrimination based on gender identity falls under sex discrimination. 

Neither bill has been scheduled for a full House vote. 

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Categories / Civil Rights, Politics, Regional

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