The South Dakota state Senate on Tuesday approved a measure requiring students at state public schools to use restrooms and other facilities based on their "chromosomes and anatomy" at birth. The bill, which could become the first such law in the nation, is now headed to the governor's desk.
While supporters of the bill said it was necessary to protect children's privacy, critics argued that it amounts to discrimination against transgender students, who could be banned from using the restrooms or locker rooms that align with their gender identity. Under the measure, such students would be afforded "reasonable accommodations" if they did not want to use the facilities that align with their birth sex. The measure passed with a vote of 20-15.
State Sen. Brock Greenfield, the main proponent of the bill, said it "asks us to contemplate what we feel is appropriate ... regarding the commingling of biological sexes in the same rather intimate settings." He added: "We recognize there are a number of concerns, but let me just ask you: do you feel it appropriate for a 12-year-old girl to be exposed to the anatomy of a boy?"
Other senators called such comments unfair fear-mongering and said it suggests that transgender youth are dangerous or perverted, when the reality is that they are often bullied and especially self-conscious of their bodies. "It suggests that these are kids out there that are preying on other kids," said state Sen. Bernie Hunhoff. "These are kids that are very much at risk in their schools ... Let's not be adding to their burdens."
He and several other lawmakers, mostly Democratic but some Republican, pointed out that there were no documented cases of bathroom access having caused problems in the absence of such a law and advocated for schools be able to locally handle whatever situations may arise. Others questioned how such a law would actually be enforced.
"Are we going to do a blood test on students coming into kindergarten? And who pays for that?" said state Sen. Angie Buhl O'Donnell. "A whole community of people tells us that we are hurting them … They just want to live their lives in peace. Schools have been working with students on a one-on-one basis for a long time."
Much of the debate over the bill was financial. Indiana lost an estimated $60 million in economic impact from conventions after it passed a 2015 law that was seen as unfriendly to the LGBT community, according to the state's non-profit tourism agency. In fighting such measures, advocates often point out that businesses want to open up shop and hire people in places that have a reputation for being inclusive and open-minded. Hunoff warned that if the bill becomes law, the state might have to deal with tourism or business boycotts. The state "could have egg on our face all over this world," he said.
Also at question was whether passing such a law will put South Dakota school districts at risk of losing more than $200 million in federal funding. Though federal courts are still weighing the issue, the Department of Justice has issued several rulings and opinions that classify denying bathroom access to transgender students as sex discrimination under Title IX. The Department of Education has issued similar guidance, saying that the gender identity of students must be respected.
LGBT rights groups quickly condemned the vote, sending out statements that called the decision "a shameful attack against transgender kids," as well as "distressing and disturbing." The Transgender Law Center, the largest organization dedicated entirely to transgender advocacy, issued a statement saying that signing the bill into law would open up the state to "legal chaos." That organization has pursued cases against schools for instituting similar policies.
Greenfield closed his statement in support of the bill by saying that such action was necessary because "there is a very real agenda" to "promote this issue" on the federal level and that passing the bill would be an “act in defiance of their new interpretation."
The governor, Republican Dennis Daugaard, has not indicated whether he will sign the bill.