Metro Weekly

South Dakota anti-transgender “bathroom bill” heads to governor’s desk

Gov. Daugaard has five days to veto measure before it goes into law

South Dakota Gov. Dennis Daugaard (Photo: U.S. Air Force Airman 1st Class Kate Thornton).
South Dakota Gov. Dennis Daugaard (Photo: U.S. Air Force Airman 1st Class Kate Thornton).

The fate of South Dakota transgender schoolchildren now rests with Gov. Dennis Daugaard (R) after the South Dakota Senate approved a bill that would prohibit transgender students from using any restroom or changing facility other than the one designated for their biological sex.

Despite fierce opposition from LGBT advocates, the bill has made its way to the governor’s desk, where he has five business days to decide whether to veto the measure before it goes into effect. 

The National Center for Transgender Equality (NCTE) warned that the bill — the first of its kind to ever pass out of a state legislature — could set a dangerous precedent if enacted into law. NCTE also pointed out that a provision requiring that bathroom usage be determined “by a person’s chromosomes and anatomy as identified at birth” is both unrealistic — assuming that schools would somehow have chromosomal testing on hand — and invasive, as it violate’s students’ privacy by potentially subjecting them to anatomical searches by administrators. 

“This bill hurts transgender students, takes away control from local schools, and doesn’t solve any problems,” Mara Keisling, executive director of NCTE said in a statement. “In fact, it does more harm than good to both trans kids and South Dakota’s reputation.”

Other LGBT advocates have pointed out that, if enacted, the bill could put South Dakota school districts at risk of losing federal dollars under Title IX, which prevents discrimination on the basis of sex. The U.S. Department of Education’s Office of Civil Rights has already ruled in a case out of Illinois that denying transgender students’ access to facilities consistent with their gender identity constitutes discrimination based on sex. Besides the potential legal costs of the bill, the American School Counselor Association lobbied heavily against its passage against its passage, citing the risk of harassment, bullying or intimidation that could befall transgender or gender-nonconforming students in sex-segregated spaces. 

Chad Griffin, president of the Human Rights Campaign, accused South Dakota lawmakers of failing to fulfill their “most fundamental obligation — to protect the state’s young people from harm.” He also called on Daugaard to veto the bill.

“It is inconceivable that Governor Daugaard would decide the fate of this bill while saying he’s never met a transgender person in his life,” Griffin said in a statement. “We urge him in the strongest possible terms to veto this legislation, and to engage in thoughtful dialogue with his transgender constituents, especially South Dakota’s transgender children.”

The bill targeting bathroom usage is just one of several anti-transgender pieces of legislation being pushed by South Dakota lawmakers. On Wednesday, the House State Affairs Committee voted 8-4 to approve an entirely different bill that also targets transgender people by forcing “any public body of the state or its political subdivisions” to accept only a person’s biological sex as assigned at birth as valid. Thus, for purposes such as school registration or when obtaining government identification, only the person’s assigned sex as listed on the birth certificate would be recognized, even if that information is outdated or incorrect.

Another bill that passed the House of Representatives targets transgender schoolchildren by banning them from participating in sports or club activities in a manner consistent with their gender identity. And a fourth would guarantee that individuals or businesses who discriminate against same-sex couples, LGBT individuals, or even single mothers the right to receive taxpayer funds without fear of losing special status, certification, licensing or accreditation.

Libby Skarin, the policy director of the ACLU of South Dakota, pointed to testimony given during Wednesday morning’s committee meeting on the bill as evidence that lawmakers have introduced these measures to deliberately single out transgender individuals for discrimination.

“This morning’s testimony only made it more obvious that the entire anti-transgender slate of bills being considered by the South Dakota Legislature is motivated by anti-transgender animus and not any actual problem that needs to be solved,” Skarin said.

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