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Transgender Students' Bathroom Use Would Be Restricted by South Dakota Bill

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Update: South Dakota's Senate passed the bill Feb. 16. It now heads to the governor's desk.

LGBT rights groups have sounded the alarm on a South Dakota bill that could become the first state law in the country to restrict how schools treat transgender students.

House Bill 1008 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 passed the state's House in January. The state Senate is expected to consider it on Thursday.

If the bill passes and is signed into law, South Dakota would place its schools at odds with the way the U.S. Department of Education interprets federal civil rights laws.

As I've written before, accommodations for transgender students are very uncertain legal area for many school leaders. The Education Department has said Title IX applies to sexual orientation and gender identity, even though the law doesn't explicitly mention those protections.

Disagreement Over Title IX

Though they haven't issued guidance on the topic, the Departments of Education and Justice have both weighed in on federal lawsuits over transgender student issues, arguing that school staff members should call them by the pronouns, and allow them to use facilities, that match their gender identity, even if it differs from their sex at birth. Last year, the department ironed out a contentious compromise over a transgender girl's locker room access with an Illinois school district. 

But not everyone agrees with the department's interpretation of Title IX. A group of states has weighed in on a pending federal case, arguing that the law doesn't apply to gender identity.

Backers of South Dakota's transgender student bill, and another bill that would require students to play on sports teams that match their biological sex at birth, say they are "necessary to offset decisions made by President Barack Obama's administration," the Argus Leader reported. "They say his interpretation of a federal anti-discrimination policy expands too far in covering transgender students and reprimands have been unwarranted for conservatives affiliated with the government who voice their religious views."

"We've never seen such an unprecedented attack on religious expression," Rep. Scott Craig, a Rapid City Republican who is sponsoring one of the bills, told the paper. "The call or the cry for tolerance is definitely a one-way street."

'Reasonable Accommodations'

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 advocates, and the federal education department, have said such accommodations unfairly single out transgender students and violate their civil rights.

"This legislation is disturbing, shocking, and outrageous," Human Rights Campaign President Chad Griffin said in a statement Wednesday. "It serves no other purpose than to directly attack transgender children and could have catastrophic consequences." 

Other states have considered bills similar to South Dakota's in the past, and a handful have been filed in current legislative sessions, but South Dakota's appears closer to passage than the others.


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