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S.D. Bill That Limits Transgender Student Bathroom Use Bound for Governor's Desk

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The South Dakota Senate passed a bill Tuesday that would make the Mount Rushmore State the first to approve state-level restrictions on the bathrooms and locker rooms that transgender students use at school, potentially setting its schools up for legal battles with federal officials.

In a 20-15 vote, the state senate approved H.B. 1008, which would require students to use bathrooms and locker rooms that match their biological sex, defined as "the physical condition of being male or female as determined by a person's chromosomes and anatomy as identified at birth," even if that sex doesn't match the gender they identify with.

The bill has already passed the South Dakota House. A spokesman for Gov. Dennis Daugaard, a Republican, said Daugaard will decide whether to sign the bill after reviewing testimony and discussions from legislative hearings.

Proponents of the measure, including its sponsor, argued that it became necessary to set state-level legal guidelines for the use of school facilities after federal agencies, including the U.S. Departments of Justice and Education, began asserting in recent years that Title IX applies to sexual orientation and gender identity, as well as sex and gender. The federal Education Department's office for civil rights made such an assertion in an agreement with an Illinois district last year over a transgender girl's access to school locker rooms.

"This only asks us to contemplate what we feel is appropriate related to our law regarding the co-mingling of biological sexes in, I guess I would say, rather intimate settings...," said state Sen. Brock Greenfield, a Republican. "Do you feel it is appropriate for a 13-year-old girl to be exposed to the anatomy of a boy or a 13-year-old boy exposed to the anatomy of a girl because of decisions we've made here?"

Greenfield said new concerns about student privacy in schools were the "product of recent decisions that have been made at the federal level."

Democrats who argued against the bill suggested it would open school districts up to potential lawsuits and put them on the hook for damages if those lawsuits were successful. Out-of-state, politically conservative law firms have agreed to represent South Dakota in potential suits, but those law firms' agreements are not legally binding, so they provide little assurance to school districts who fear repercussions if the law passes, lawmakers said.

The federal Education Department's interpretation of Title IX is not legally binding. A federal judge in Virginia ruled against Title IX's application to transgender students last year, but the plaintiff in that case, a transgender boy, asked for a new judge, claiming the current judge is biased against transgender people. An appeal of that decision is pending before a federal appeals court, and a group of states have weighed in, arguing that the civil rights law does not apply to gender identity because it doesn't explicitly mention it.

As I've written before, school districts around the country have said they are uncertain about their legal obligations to transgender students.

Students and LGBT advocacy groups also spoke against the South Dakota bill, arguing that it would stigmatize and hurt transgender students. Some lawmakers agreed.

"Maybe this bill was not intended to be disrespectful, but I would suggest this: If an entire community says that we are hurting them, who are we to say that we aren't?" said Sen. Angie Buhl O'Donnell, a Democrat. 

"This ultimately tells these kids that they aren't welcome in this state to be who they are," she later added.

South Dakota's bill calls for "reasonable accommodations" for students who "asserts that the student's gender is different from the student's biological sex," as long as "the student's parent or guardian consents to that assertion in writing to a public school administrator" or is an adult or an emancipated minor.

"A reasonable accommodation may not include the use of student restrooms, locker rooms, or shower rooms designated for use by students of the opposite biological sex if students of the opposite biological sex are present or could be present," the bill reads. "A reasonable accommodation may include a single-occupancy restroom, a unisex restroom, or the controlled use of a restroom, locker room, or shower room that is designated for use by faculty. The requirement to provide a reasonable accommodation pursuant to this section does not apply to any nonpublic school entity."

LGBT student advocates and federal officials have said that such accommodations are inadequate and stigmatize transgender students.


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