South Dakota is poised to become the first state in the nation to enact a law banning transgender students in public schools from using bathrooms for the gender with which they identify — a move that would set the state up for legal challenges that carry national implications.
The State Senate voted 20-15 on Tuesday to approve HB 1008, which also requires that trans students use shower facilities and locker rooms meant for their gender at birth, mandating that schools provide a "reasonable accommodation" for trans students, such as a single-occupancy bathroom, as an alternative. Republican State Senator David Omdahl said that the law was necessary to "preserve the innocence of our young people," and has called transgender individuals "twisted" and in need of psychological help.
South Dakota's House of Representatives approved the legislation last month. It will now go to the desk of Gov. Dennis Daugaard, who will decide whether to pass or veto the law. Daugaard has not said publicly whether he will sign or veto the bill, but did acknowledge several weeks ago that he had never met or could remember meeting a transgender person.
In light of the State Senate's vote on Tuesday, LGBT advocates pleaded with Daugaard to sit down and speak with local transgender students at the Center for Equality in Sioux Falls before determining the bill's fate.
"In light of recent events, the Center for Equality would like to invite you to visit with us in Pierre to learn more about the transgender community and to meet a few transgender Dakotans," the staff at Sioux Falls' Center for Equality wrote in an open letter to the governor.
On Wednesday, he declined to meet the transgender students, claiming scheduling conflicts.
Advocates say the law could be a matter of life and death for trans students.
"It's going to affect suicide statistics," Thomas Christiansen, the Center for Equality's president, told Sioux Falls news station KELO. "People are going to lose their lives over these bills that are coming out."
Daugaard's staff earlier told KELO that the governor would listen to audio recordings of the hearings for the bill, including testimony for and against it by advocates and transgender individuals, before reaching his decision. His office did not respond to requests for comment.
Center for Equality operations director Ashley Joubert-Gaddis told VICE News that South Dakota's enactment of the bill into law would set a national precedent for transgender discrimination, comparing the legislation to legalized segregation against African-Americans.
"The rest of the country does not tolerate any kind of hatred, and the fact we even have these bills in question in the first place is disgraceful," Joubert-Gaddis said. "We demand that everybody in the state be treated with dignity and respect."
Opponents of the bill and LGTB advocates warned lawmakers ahead of the vote that the legislation could trigger lawsuits challenging its constitutionality. The national advocacy group Freedom for All Americans, which campaigns for greater protections for LGBT Americans, said in a statement that local school districts could have to foot the bill for lawsuits by transgender students fighting the bill, and that the state could risk losing federal funding for violating discrimination laws.
Matt McTighe, executive director of the group, said in a statement that the bill was "not only discriminatory, but it is a gross invasion of privacy."
He suggested that students would have to produce documentation proving their gender in order to use certain bathrooms
In a statement from the group, McTighe acknowledge the possibility of lawsuits, noting that local school districts would have to bear the brunt of lawsuit costs, and warning that the state itself was at risk for losing federal education funding for adopting the law.
Kasey Suffredini, chief program officer for Freedom for All Americans, said that the group perceived the bill as written as an illegal violation of Title IX, which prohibits discrimination in federally funded education programs. Additionally, in other legal cases where students have challenged the legality of similar laws put in place in states or towns, the students have often won, he said. Suffredini said there was "no question" that the law would end up in court if Daugaard approves it.
The local chapter of the ACLU campaigned against the bill and condemned its passage in the Senate yesterday, but has not announced any plans to challenge the bill if it is signed into law by Daugaard.
The National Conference of State Legislatures said that while other states had seen proposals for similar laws, South Dakota is the first to have such legislation pass both houses of the state legislature. Joellen Kralik, a research analyst with the NCSL, said that there has been an increase in the number of states have seen similar bills proposed in recent years, including one state in 2013, seven in 2015, and 11 states that currently have legislation proposed.
The governor has not announced a timeline for when he will announce his decision.
"He has the responsibility to at least sit down with some transgender people in the community," Joubert-Gaddis said. "Now that it's on his desk, we urge him to at least sit down and listen to them."
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