The South Dakota State Senate sent to Gov. Dennis Daugaard on Tuesday legislation that would enable discrimination against transgender students in public schools. If the governor signs the bill, South Dakota would be the first in the nation to enact an anti-trans “papers to pee” law.
The bill, HB 1008, would prohibit transgender students in public schools from using the public restroom consistent with their gender identity. The legislation, known colloquially as the “papers to pee” bill, says schools must provide transgender students with a “reasonable accommodation,” although it can’t be a shared facility, such as a locker room or public restroom.
By a vote of 20-15, the Senate voted to approved House Bill 1008, which the House already approved by a vote of 58-10.
It’s unclear what action Daugaard will take on the legislation. For weeks, his office hasn’t responded to multiple requests from the Washington Blade for his position on the legislation and whether he would sign or veto it. In February 2016, Daugaard said during a news conference he has never met a transgender person and wouldn’t make a commitment on the legislation.
The governor was expected to officially receive the bill Thursday. He must either sign or veto the bill within five business days of transmittal, or else it becomes law without his signature in a procedure known as “pocket pass.”
Alternatively, if he were inclined to veto it but didn’t want to take that step publicly, Daugaard could ask the legislature to go back and work on it. According to a source familiar with the South Dakota legislative process, that process occurred only once last year.
The South Dakota Senate approved the legislation after an hour of debate in which defenders of the bill said it would protect children and opponents said it would stigmatize the state. Critics also said the legislation would open up South Dakota to potential lawsuits and conflict with the federal government, which has determined transgender students are protected from discrimination under Title IX of the Education Amendments of 1972.
State Sen. Brock Greenfield (R-Clark), the prime sponsor of the legislation, said the legislation is needed to prevent children from being exposed to the genitalia of individuals of different biological gender.
“I don’t mean any disrespect in bringing this bill forward,” Greenfield said. “I simply bring this bill forward because I believe that what has happened in Washington, D.C., relative to this issue — and the promotion thereof — puts our children in a precarious position. We’re talking about our youth co-mingling in bathrooms and locker rooms, biological males and biological females, and a lot of my constituents approached me even before the session last year and said that just doesn’t jibe with them, that they feel that’s inappropriate.”
State Sen. Angie Buhl O’Donnell (D-Sioux Falls) said HB1008 takes the decision out of public schools’ hands and “endangers transgender students,” taking note of potential litigation against the state that could jeopardize the $200 million in funds the state receives under Title IX.
“This bill talks about biology and chromosomes,” Buhl O’Donnell said. “But I’m really not clear on who checks that, and it’s not really from the bill. Chromosomes aren’t something you can see from looking at somebody. Are we going to do blood tests on students coming into kindergarten? And who pays for that?”
Buhl O’Donnell said if the bill were about privacy, the legislation would have a provision enabling students who have an objection to transgender youth to request a private stall or courtesy curtain.
“Maybe this bill was not intended to be disrespectful, but I would submit, if someone — a whole community of people tells us that we are hurting them, who are we to decide that we didn’t?” Buhl O’Donnell said.
Two amendments proposed by Democrats aimed at mitigating the effects of the legislation were defeated in the Senate.
One amendment proposed by State Sen. Troy Heinert (D-Mission) would have changed the requirement schools remove transgender students from public restrooms to simply allowing the schools to take that course of action. His amendment was defeated by voice vote.
State Sen. Bernie Hunhoff (D-Yankton) proposed an amendment that would have ensured the state, not schools, bear the costs of litigation resulting from the law and would have created a transgender legal defense fund to ensure the money is available. His amendment was defeated by a standing vote of senators.
State Sen. Deb Peters (R-Hartford) took the unusual step of bucking her party when she announced on the Senate floor she would vote against the legislation. Based on her conversations with students, Peters said she thinks HB 1008 “does more harm than good.”
In response, State Sen. David Omdahl (R-Sioux Falls), who gained nationwide attention earlier this month for calling transgender people “twisted,” asked Peters to clarify whether her children were all boys or whether she had some girls. When she replied all her children were boys, Omdahl said he has a nine-year-old granddaughter and a “young innocent girl doesn’t need to exposed to male anatomy at that age.”
Chad Griffin, president of the Human Rights Campaign, urged Daugaard to veto the legislation and to meet with transgender constituents who would be affected by the measure.
“We urge him in the strongest possible terms to veto this legislation, and to engage in thoughtful dialogue with his transgender constituents, especially South Dakota’s transgender children,” Griffin said. “Knowledge is power, and we hope that by learning about their experiences, the daily challenges they face, and the damage this bill will inflict on their lives, that he will show true leadership and reject this measure. History has never looked kindly upon those who attack the basic civil rights of their fellow Americans, and history will not treat kindly those who support this discriminatory measure.”
Although in previous years anti-LGBT “religious freedom” measures were derailed in Arizona, Arkansas and Indiana after outcry in the business community, that same level of outcry wasn’t present in South Dakota.
The South Dakota Chamber of Commerce didn’t respond to the Washington Blade’s request for comment on Friday about the anti-trans legislation. Also not responding to requests for comment on the bill were major employers in South Dakota: Citibank, which operates its headquarters in Sioux Falls, and Tyson Foods, which operates Tyson Fresh Meats out of Dakota Dunes.
Cindy Morrison, executive vice president of Sanford Health, a major medical facility based in Sioux Falls, S.D., said Sanford Health has no position on the bill.
Matt McTighe, executive director of Freedom for All Americans, also called for a veto of the bill, saying it was a “gross invasion of privacy.”
“This bill is a solution in search of a problem,” McTighe added. “South Dakota needs leadership from Gov. Dennis Daugaard. If Gov. Daugaard signs House Bill 1008 into law, families across the nation will know that South Dakota is not open and welcoming place to be. We call on Gov. Daugaard to veto House Bill 1008.”
Last week, a White House official declined to comment on HB1008 in response to an inquiry from the Washington Blade. Yet to publicly oppose the legislation is the presidential campaigns of Hillary Clinton and Bernard Sanders. The Blade has placed requests in with those campaigns seeking comment.
Kris Hayashi, executive director of the San Francisco-based Transgender Law Center, called for a veto on the basis the bill would endanger both South Dakota and transgender students.
“Using state law to force a student to use a separate bathroom from their peers just because they are transgender is not only dangerous and wrong, it is a violation of federal law,” Hayashi said. “If signed by the governor, this bill would endanger students and open up South Dakota schools to legal chaos, liability, and the loss of millions in federal funds. Transgender Law Center urges Gov. Daugaard to veto this bill and stop South Dakota from becoming the first state in the country to fly in the face of federal law by mandating discrimination against transgender young people.”
In South Dakota, HB 1008 is but one anti-LGBT bill pending before the legislature, although it’s the furthest along in the process. Another bill is HB 1007, a religious freedom bill seen to enable anti-LGBT discrimination. Yet another, HB 1112, would ban any transgender-inclusive policies in South Dakota schools.