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Published in Print: March 9, 2016, as S.D. Governor Vetoes Limits on Transgender Access to Restrooms

S. D. Governor Vetoes Limits on Transgender Students' Restroom Access

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South Dakota Gov. Dennis Daugaard vetoed a bill last week that would have restricted which restrooms and locker rooms transgender students could use in the state’s public schools, saying it would take decisionmaking authority away from local officials.

H.B. 1008 would have gone into effect March 1 if Daugaard, a Republican, hadn’t acted first.

The bill would have created the first state-level restrictions for transgender students by requiring them to use restrooms 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.

“House Bill 1008 does not address any pressing issue concerning the school districts of South Dakota,” Daugaard wrote in a veto statement. “As policymakers in South Dakota, we often recite that the best government is the government closest to the people. Local school districts can, and have, made necessary restroom and locker room accommodations that serve the best interests of all students, regardless of biological sex or gender identity.”

Daugaard made his decision after meeting with both transgender students and supporters of the bill.

Champions of the measure, including conservative groups and Republican lawmakers, said it would have provided clarity for school districts about a complicated legal issue. Some lawmakers also argued that parents have privacy concerns when children with different anatomy use the same facilities.

But opponents, including advocates for lesbian, gay, bisexual, and transgender students, argued that the bill would stigmatize vulnerable students and potentially put schools at odds with the U.S. Department of Education’s office for civil rights, which has said schools are obligated, under Title IX, to honor transgender students’ gender identity.

No Legal Clarity

School administrators nationwide have been struggling with legal uncertainty about how to accommodate transgender students. Transgender students who’ve won access to school facilities in court have done so under state civil rights laws.

The bill, one of several proposals related to gender identity that South Dakota lawmakers will consider in the current legislative session, would have required schools to provide “reasonable accommodations” if a student with parental consent “asserts that the student’s gender is different from the student’s biological sex.” Those accommodations “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.”

But federal officials have said that such accommodations are inadequate and stigmatize transgender students.

The federal interpretation of Title IX as it is applied to transgender students is the subject of a pending case in a federal appellate court in Virginia.

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The ruling in that case may provide further clarity for schools, school law experts have said.

“Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state,” Daugaard’s veto statement said.

“Preserving local control is particularly important because this bill would place every school district in the difficult position of following state law while knowing it openly invites federal litigation. ... This law will create a certain liability for school districts and the state in an area where no such liability exists today.”

Other state legislatures have proposed similar measures, but none has come as close to becoming law as South Dakota’s did.

Vol. 35, Issue 23, Page 18

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