South Dakota could soon become the first state to restrict public school restrooms or locker rooms to students of the same biological sex, a potential move that has been decried by transgender rights advocates.
Gov. Dennis Daugaard has until Tuesday to decide whether to sign HB 1008, a measure that came to his desk last week. If Daugaard does nothing, the bill becomes law by default.
The governor is a Republican, as are most members of South Dakota’s House of Representatives and Senate who voted to approve the bill. The legislation cruised through the House in January in a 58-10 vote, then passed the Senate by a 20-15 vote in mid-February.
Last Thursday, two days after he received the legislation, Daugaard gave no indication which way he was leaning.
“I’ll get it done … by Tuesday,” the governor told reporters then. “… I certainly want to do it as quickly as possible, but it’s more important to do it well.”
Similar bills proposed in other states
The bill’s text does not use the word “transgender,” the term for people who don’t identify as the gender they’re born as, and who often takes steps to change their gender. Yet that group is the one that will be most affected, as evidenced by the bill’s defining “biological sex” as “the physical condition of being male or female as determined by a person’s chromosomes and anatomy as identified at birth.”
If it becomes law, that doesn’t mean someone who identifies as a girl, but was born a boy, will necessarily have to go to a boys’ restroom. Rather, it calls for them to be given “reasonable accommodation” — specifically, the use of a “single-occupancy restroom, unisex restroom or the controlled use of a restroom, locker room or shower room.”
It also dictates that a school district face no “undue hardship” under any new requirement, like being forced to build (and pay for) separate restrooms for transgender students. And private schools would be exempt from the “reasonable accommodation” clause.
Similar bills have been proposed in Illinois, Indiana, Kentucky, Massachusetts, Mississippi, Missouri, Oklahoma, Tennessee, Virginia, Washington and Wisconsin. But South Dakota is the closest to having actual legislation passed.
Strong feelings on both sides of debate
Transgender students and their families met last week with Daugaard to press their case.
“It singles out transgender individuals and forces them to use something that they’re not comfortable using,” Nathan Leonard, a transgender teen and high school freshman from Watertown, told CNN last month.
Yet those on the other side of the debate say the measure is important to ensure all students’ privacy.
“The primary purpose of the bill is to protect the physical privacy of students from having to expose themselves, or be exposed to others, when in a state of undress or nakedness while at school or school functions,” said State Rep. Fred Deutsch, who authored the bill.
One Sioux Falls father, who did not want to be named, said he supports the measure in part because of his concerns about the bullying of transgender students. He also does not want his own son to have to use the same bathroom as them, either.
“I don’t think I’d want my 16-year-old boy in the bathroom with a transgender student if that student had a radically different look, like someone who changed from a girl to a boy and might have a beard now,” the father said.