Law & Courts

South Dakota Could Be First State to Restrict School Restrooms Used by Transgender Students

By Evie Blad — February 19, 2016 6 min read
Thomas Lewis, an 18-year-old transgender student at Lincoln High School in Sioux Falls, S.D., speaks out against legislation that advocacy groups have said would discriminate against transgender people during a news conference last month in Sioux Falls, S.D.
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South Dakota could become the first state to restrict the restrooms and locker rooms that transgender students use at school, potentially setting its public schools up for legal battles with federal officials.

A bill that has cleared both houses of the legislature would require students 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.

The legislation would potentially put the state’s 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. The South Dakota measure comes as school administrators nationwide have been struggling with legal uncertainty about how to accommodate transgender students.

The bill, HB 1008, passed the state Senate earlier this week on a 20-15 vote and House lawmakers approved it in January with a vote of 58-10. A spokesman for Gov. Dennis Daugaard, a Republican, said that Daugaard would decide whether to sign the bill after reviewing testimony and discussions from legislative hearings.

State lawmakers around the country have proposed similar measures in recent years, but none has passed another legislature.

The bill is one of several proposals related to transgender students introduced by South Dakota lawmakers this session. Another would require public institutions, including schools, to use the sex printed on a person’s birth certificate to determine his or her gender. A third would require the South Dakota High School Activities Association, which sets rules for school sports teams, to seek approval from state lawmakers before passing policies related to transgender students.

‘Reasonable Accommodations’

Proponents of the bill that restricts the use of locker rooms and restrooms said it is a necessary response to federal overreach and the advancement of “an agenda” from Washington related to sex and gender. Some parents are concerned about the privacy rights of their children at school, state Sen. Brock Greenfield, a Republican, said earlier this week as he argued in support of the bill on the Senate floor.

“This only asks us to contemplate what we feel is appropriate,” he said, “related to our law regarding the co-mingling of biological sexes in, I guess I would say, rather intimate settings. ... 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?”

Those who argued against the bill, including transgender students who spoke in committee hearings, said it would unfairly stigmatize and single out transgender students.

“It makes me feel like I’m not a human being,” said Thomas Lewis, a transgender student at Lincoln High School in Sioux Falls. “It makes us feel like we’re all alone in the world and that the stigma that we face already is real.”

The bill calls for 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.”

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

Some Democratic lawmakers said they fear a tourism boycott from advocacy groups if the bill is signed into law, not unlike what happened last year when Indiana lawmakers approved a measure making it easier for religious conservatives to refuse services for gay couples.

Groups such as the Gay, Lesbian and Straight Education Network and the American Civil Liberties Union have spoken against the South Dakota legislation.

Potential Lawsuits

State senators who argued against the bill—mostly Democrats—suggested it would open school districts up to potential lawsuits and put them on the hook for damages if those lawsuits were successful. Politically conservative out-of-state law firms have agreed to represent South Dakota in potential suits, but those agreements provide little assurance to districts that fear repercussions if the law passes, Democratic lawmakers said.

The U.S. departments of Justice and Education have asserted in recent years that Title IX—the law that prohibits sex discrimination in education programs receiving federal aid—applies to sexual orientation and gender identity, in addition to sex. The federal Education Department’s office for civil rights took that position in an agreement with an Illinois district last year over a transgender girl’s access to school locker rooms.

In response to questions about South Dakota’s bill, a spokesperson for the federal agency referred to remarks White House Press Secretary Josh Earnest made this week.

The White House didn’t have a legal analysis of the bill, Earnest said in response to a reporter’s question at a press briefing, but “the kind of values that this administration has championed have been values that have been dedicated to inclusiveness and non-discrimination, and even respect for other human beings. And there are many elements of this legislation that you’ve described that seem to come into sharp conflict with those basic American values.”

The Education Department did not answer more specific questions about whether they would intervene in South Dakota schools if the bill is signed.

The Education Department’s interpretation of Title IX is not legally binding, and previous legal victories for transgender students have been won at the state level. Seventeen states and the District of Columbia have more general laws that prohibit discrimination on the basis of gender identity. Those states include California, which in 2014 implemented a law that explicitly lists transgender-student protections. Opponents later tried, and failed, to overturn the law.

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 appellate court.

A group of states filed a brief in that case, arguing that Title IX does not apply to gender identity because the statute doesn’t explicitly mention it. On the other side, the Justice and Education departments filed a brief in support of the student.

“Until extraordinarily recently, this issue was not an issue,” said Greenfield, the South Dakota lawmaker. “This issue has been thrust upon us in recent years by an activist group of bureaucrats and politicians in Washington, D.C.”

But opponents of the bill said South Dakota’s school districts have succeeded in accommodating students on a case-by-case basis. State-level restrictions would rob administrators of local control, they said.

Others said the bill would do more harm than good if it is signed into law.

“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 state 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.”

A version of this article appeared in the February 24, 2016 edition of Education Week as S.D. May Restrict Restroom Use For Transgender Students

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