South Dakota Gov. Dennis Daugaard has vetoed a bill seen to discriminate against transgender students in his state by prohibiting them from using a public restroom consistent with their gender identity, making him the first governor in the country to veto a “papers to pee” bill.
In his veto message, Daugaard said the measure, HB 1008, “does not address any pressing issue” affecting schools or students in South Dakota.
“As policymakers in South Dakota, we often recite that the best government is the government closest to the people,” Daugaard said. “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 criticized the measure for imposing statewide standards on bathroom use for transgender students, saying the bill “removes the ability of local school districts” to handle the issue.
“If and when these rare situations arise, I believe local school officials are best positioned to address them.” Daugaard 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.”
The Republican governor had until Tuesday to sign the legislation, veto it or allow it to become law by taking no action. The governor had kept silent about his position on the bill until now. He met with State Rep. Fred Deutch, the chief sponsor of the bill in the House, on Tuesday.
The legislature seems unlikely to attempt to override the veto. In a statement, Deutch said he’ll urge colleagues to sustain the governor’s action to keep the spotlight off South Dakota.
“Because I think the national focus on South Dakota should be our positive business environment, strong labor market and the excellent work our schools do, I am going to ask my legislative colleagues to concur with the governor’s veto,” Deutch said. “Further focus on this issue will detract from the other significant accomplishment of the legislature this session.”
The bill, HB 1008, would have barred transgender students in public schools from using the shared restrooms consistent with their gender identity. It’s unclear how it would have been enforced, but critics have said students would have needed to prove their biological sex through a blood test or a birth certificate.
The South Dakota measure was but one of several anti-trans bathroom bills in state legislatures throughout the country. According to a report from the Human Rights Campaign, an unprecedented number of 44 anti-trans bills are pending in state legislatures in 16 states throughout the country. The Republican National Committee endorsed the legislation in a resolution approved last month at its winter meeting in Charleston, S.C.
Kris Hayashi, executive director of Transgender Law Center, said Daugaard “made the right call” in deciding to veto the anti-trans legislation.
“Every child, including transgender children, should feel welcome in their state and in their school, and should have the opportunity to succeed and be treated fairly as they work to get an education,” Hayashi said. “Using state law to force schools to perform gender checks on students who need to use the bathroom – and then separate out transgender students from their peers – is not only dangerous and wrong, it is a violation of federal law.”
Critics said the bill was at odds with the federal government, which under the Obama administration has interpreted the gender provisions of Title IX of the Education Amendments of 1972 to prohibit discrimination against transgender students in schools. An estimated $200 million in Title IX funding for South Dakota could have been at risk as a result of the bill.
In the weeks leading up to the governor’s veto, LGBT advocates pressed Daugaard to veto the legislation through numerous means and sounded the alarm through social media.
The South Dakota-based Center for Equality arranged for Daugaard to meet with transgender students in the state after he said during a news conference he had never met a transgender person when asked about HB 1008. The governor also agreed to meet with the bill’s sponsors.
In an open letter published in the South Dakota-based Argus Leader, Wayne Maines, a South Dakota resident with a transgender daughter, called on Daugaard to stop the legislation, saying children like his daughter across the nation “go to school everyday afraid.”
“They sit in class and learn about powerful words, like courage, freedom and equality,” Maines writes. “Words that transgender people know well and dream will one day be true. Words that some of our leaders talk about but have forgotten how to use.”
Mara Keisling, executive director of the National Center for Transgender Rights, said Daugaard demonstrated “true leadership” by vetoing the bill after listening to transgender students.
“Gov. Daugaard has demonstrated true leadership in listening to the hundreds of transgender South Dakotans and their families who would have been directly impacted by this bill,” Keisling said. “He has made a carefully informed decision that protects all students in South Dakota. His example shows that scare tactics can be overcome by understanding who trans people really are.”
A coalition of national and South Dakota-based LGBT advocacy groups — the Human Rights Campaign, the American Civil Liberties Union, the ACLU of South Dakota, Believe Out Loud & Reconciling Ministries, Freedom for All Americans, the National Center for Transgender Equality and the Transgender Law Center — delivered a petition to Daugaard signed by more than 80,000 people calling on him to veto the legislation.
Although South Dakota businesses were initially quiet about the bill, major employers such as Sanford Health, Citibank and First Premier Bank later publicly expressed concerns about the legislation as Daugaard was considering it.
In the days after the South Dakota Legislature sent HB 1008 to Daugaard, the nation’s child welfare experts — the American Academy of Pediatrics, the American Counseling Association, the American School Counselor Association, the Child Welfare League of America, the National Association of School Psychologists, the National Association of Social Workers and the National Education Association — expressed concerns about the legislation in an open letter to the nation’s governors.
White House Press Secretary Josh Earnest said the legislation seems in “sharp contrast” to American values of non-discrimination. Amid their presidential campaigns, neither Hillary Clinton, nor Bernard Sanders spoke out against the bill despite repeated requests from the Washington Blade to comment.
The governor’s full veto message follows:
March 1, 2016
The Honorable Dean Wink
Speaker of the House of Representatives
500 East Capitol Avenue
Pierre, SD 57501
Dear Mr. Speaker and Members of the House of Representatives,
I respectfully return to you House Bill 1008, with my VETO.
House Bill 1008 does not address any pressing issue concerning the school districts of South Dakota. 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.
This bill seeks to impose statewide standards on “every restroom, locker room, and shower room located in a public elementary or secondary school.” It removes the ability of local school districts to determine the most appropriate accommodations for their individual students and replaces that flexibility with a state mandate.
If and when these rare situations arise, I believe local school officials are best positioned to address them. 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.
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. Although there have been promises by an outside entity to provide legal defense to a school district, this provision is not memorialized in the bill. Nor would such defense eliminate the need for school or state legal counsel, nor avoid expenses relating to expert witnesses, depositions and travel, or other defense costs. Nor does the commitment extend to coverage over settlement or damage expenses. This law will create a certain liability for school districts and the state in an area where no such liability exists today.
For these reasons, I oppose this bill and ask that you sustain my veto.