Update: The Senate voted to approve the bill on Tuesday afternoon, 20 to 15, after a fiery debate.
South Dakota is on the cusp of becoming the first state in the nation to require public school students to use facilities like bathrooms based on their “chromosomes and anatomy” at birth. The so-called “bathroom bill,” which passed the state House in early February and is being debated by the state Senate Tuesday, marks a revival of the charged fights that played out in states across the country in 2015.
At least five other states have considered similar “bathroom bills” this session, and scores of other measures that LGBT rights advocates consider discriminatory are pending in legislatures around the U.S. Among them are variations on a proposal that exploded in Indiana last year, when controversy over a so-called religious freedom law became a flashpoint in the ongoing debate over religious belief and legal equality. The Hoosier State’s measure led to an estimated $60 million in lost revenue, and after weeks of economic and political pressure, Indiana Governor Mike Pence approved revisions to the law clarifying that businesses couldn’t use it to turn away LGBT patrons.
To many supporters, these bills are necessary to protect deeply held religious beliefs and are worth the controversy and lost revenue. To critics, however, the measures seemed aimed at allowing people to treat LGBT citizens differently, based on moral opposition to homosexuality and transgenderism, and serve as a reminder that the lessons of the Indiana fight were fleeting.
“There’s a bit of amnesia,” says Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union. “The original plan was to make sure marriage equality wouldn’t be legal. You don’t have to scratch very far beneath the surface to see that these bills are about eroding LGBT equality.”
The battle over bathrooms
The fight in South Dakota echoes earlier clashes over gender identity and bathroom use of transgender people. The sponsor of the South Dakota bathroom measure, state Rep. Fred Deutsch, has argued in committee testimony that it is necessary to protect the “bodily privacy rights” of “biologic boys and girls” and that transgender students should be offered alternate accommodations if they do not wish to use the facilities that correspond to their sex assigned at birth. (Deutsch did not respond to TIME’s request for an interview.)
Though the bill does not specify what those accommodations would be, schools that have dealt with conflicts over bathroom use have often instructed transgender students to use staff or nurse facilities, or facilities in buildings separate from their peers. The Department of Justice has issued several rulings and opinions that say such treatment of transgender students amounts to sex discrimination under Title IX, though federal courts are still weighing the issue.
“This bill causes actual harm to transgender students, an already vulnerable population,” says Libby Skarin, the ACLU’s South Dakota policy director, who has testified against the bill. “It singles out and targets them and attempts to isolate them, in a way that is really truly hurtful and discriminatory.”
Rebecca Dodds, the mother of a transgender son who recently graduated from high school in the state’s famed Black Hills, said compelling students to use a separate facility could force them to out themselves to their peers, which could lead to harassment or violence.
“For my son, I wouldn’t want him to go to school as a boy and be questioned by other students about why he can’t just go to the bathroom with the other boys,” she says. “He was afraid to tell me and I’m his mom … It’s really awful to think about your child being the one that they’d say, ‘Okay, everybody, go to the locker room—but not you.'”
Before he came out, Dodds says, the prospect of having to use the girls’ room was so uncomfortable that he would just not go to the bathroom at school. She didn’t know that at the time, and Dodds was perplexed about why her child was repeatedly getting urinary tract infections and other related health problems. “My son has dealt with social isolation and doesn’t particularly like his own body,” she says. “To think he would be some kind of threat to other kids is really absurd.”
Speaking in support of the bathroom bill, a representative from South Dakota Citizens for Liberty said the measure offers a good compromise: “It allows for the sensitive accommodation of students who are experiencing personal trials,” Florence Thompson testified at a hearing of the Senate education committee on Feb. 11. “And does so without giving preferential treatment to a tiny segment of the student population at the expense of the privacy rights of the vast majority.”
Religious freedom and discrimination
Another measure being considered in South Dakota serves as an example of the new surge of religious freedom bills. It has more than three dozen co-sponsors, and, after passing unanimously in the House, is awaiting further action in the Senate. It extends protections for people with three moral beliefs that are laid out in the bill’s text:
(1) Marriage is or should only be recognized as the union of one man and one woman
(2) Sexual relations are properly reserved to marriage
(3) The terms male or man and female or woman refer to distinct and immutable biological sexes that are determined by anatomy and genetics by the time of birth.
While critics worry about such bills being used to turn away LGBT people from housing, jobs or businesses, they also worry it could open the door to a broader insertion of personal morality in the public sphere. A pharmacist might, for instance, refuse to fill a birth control prescription for an unmarried woman or a child care agency might refuse to look after a boy or girl with gay parents, without risk of losing their state licenses.
The fight has played out at the state level largely because there is no federal law that bans discrimination based on sexual orientation or gender identity. The Equality Act, a federal bill that would create such protections, is unlikely to go anywhere in a Republican-controlled Congress. Meanwhile, the majority of states lack LGBT non-discrimination laws, although a bill in Pennsylvania will likely add sexual orientation and gender identity to the state’s non-discrimination protections.
As in Indiana, the embrace of LGBT-inclusive policies by many major corporations could help determine whether these religious freedom and bathroom measures become law. In Georgia, where lawmakers are considering at least four religious freedom bills, a group of businesses—including Coca-Cola, AT&T and Delta—has formed to promote “inclusive” policies, explicitly mentioning sexual orientation and gender identity as qualities that should be respected.
In South Dakota, dollars and cents may determine whether the bathroom bill passes too, with the ACLU arguing that the passage of such a law would put the state in direct conflict with federal policy—and therefore all but guarantee costly litigation for school districts that are forced to choose to follow one or the other. Failing to comply with guidance from the Department of Education, which has said that students’ gender identities must be respected, could run the risk of costing local districts hundreds of millions in federal funds.
Yet supporters like Deutsch say that the guidance coming from the federal government is the reason such bills are needed, so that South Dakota won’t be pressured into providing facility access for transgender students that is not yet explicitly laid out in federal law. “I know it stimulates lots of passion, there’s nothing I can do about that,” he said in a Senate committee hearing. “If you have boy anatomy, you use boy facilities. If you have girl anatomy, you use girls facilities. And if you’re a transgender student, schools make local decisions to provide you the best reasonable accommodations that they can come up with.”
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