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South Dakota Gov. Kristi Noem proposes anti-Trans sports bill

Noem’s draft legislation would codify two executive orders – one for K-12 students and the other for the collegiate level.

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South Dakota Republican Gov. Kristi Noem (Blade screenshot via Forbes YouTube)

PIERRE – Months after vetoing an anti-trans sports bill, South Dakota Republican Gov. Kristi Noem proposed legislation last week to bar trans women and girls from playing sports. 

Noem’s draft legislation would codify two executive orders – one for K-12 students and the other for the collegiate level – she wrote shortly after vetoing a state Republican anti-trans sports bill. 

Her first order stated that “only females, based on their biological sex, as reflected on ther birth certificate or affidavit provided upon initial enrollment” can participate in women’s school sports. The second made a similar declaration for college sports. 

According to the Sioux Falls Argus Leader, South Dakota High School Activities Association still allows trans student-athletes to compete.

The proposed bill also states that if an athlete suffers direct or indirect harm due to violation of the legislation, that student has a private cause of action for relief against the school, athletic organization or college that caused the harm.

The two executive orders came after Noem praised but vetoed anti-trans legislation that the Republican-controlled state legislature passed, fearing the NCAA would take the state to court over the bill. 

“This legislation does not have the problematic provisions that were included in last year’s House Bill 1217,” Noem said in a press release. “Those flawed provisions would have led to litigation for our state, as well as for the families of young South Dakota athletes – male and female alike.”

The American Civil Liberties Union (ACLU) of South Dakota condemned Noem’s proposed legislation, calling it a solution in search of a problem. 

“Let’s be clear: Noem’s proposed legislation is an attack on transgender women and girls,” wrote Jett Jonelis, Advocacy Manager for the ACLU of South Dakota.

According to the organization, the bill is also illegal, violating the United States Constitution and Title IX of the Civil Rights Act, which protects students – including trans ones – from sex discrimination. 

“This proposed legislation is clearly fueled by a fear and misunderstanding of transgender people in our state,” Jonelis said.

Noem claimed that the bill was “about fairness,” saying: “Every young woman deserves an equal playing field where she can achieve success, but common sense tells us that males have an unfair physical advantage over females in athletic competition. It is for those reasons that only girls should be competing in girls’ sports. Women have fought long and hard for equal athletic opportunities, and South Dakota will defend them, but we have to do it in a smart way.”

However, Jonelis said that if Noem’s concerns were really about “fairness” in women’s sports, she would “tackle the actual threats to women’s sports such as severe underfunding, lack of media coverage, sexist ideologies that suggest that women and girls are weak, and pay equity for coaches.”

“Nobody wins when politicians try to meddle in people’s lives like this,” Jonelis continued. “Nobody wins when we try to codify discrimination like this. Legislation like Noem’s proposed bill has been discussed and defeated before. It’s time to move on.”

The bill is the eighth attempt to ban trans athletes from competing in sports in accordance with their gender identity, according to the ACLU of South Dakota. All of the proposals failed. 

The next legislative session in South Dakota begins on January 11, 2022.

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U.S. Federal Courts

Second federal lawsuit filed against White House passport policy

Two of seven plaintiffs live in Md.

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Lambda Legal on April 25 filed a federal lawsuit on behalf of seven transgender and nonbinary people who are challenging the Trump-Vance administration’s passport policy.

The lawsuit, which Lambda Legal filed in U.S. District Court for the District of Maryland in Baltimore, alleges the policy that bans the State Department from issuing passports with “X” gender markers “has caused and is causing grave and immediate harm to transgender people like plaintiffs, in violation of their constitutional rights to equal protection.”

Two of the seven plaintiffs — Jill Tran and Peter Poe — live in Maryland. The State Department, Secretary of State Marco Rubio, and the federal government are defendants.

“The discriminatory passport policy exposes transgender U.S. citizens to harassment, abuse, and discrimination, in some cases endangering them abroad or preventing them from traveling, by forcing them to use identification documents that share private information against their wishes,” said Lambda Legal in a press release.

Zander Schlacter, a New York-based textile artist and designer, is the lead plaintiff.

The lawsuit notes he legally changed his name and gender in New York.

Schlacter less than a week before President Donald Trump’s inauguration “sent an expedited application to update his legal name on his passport, using form DS-5504.”

Trump once he took office signed an executive order that banned the State Department from issuing passports with “X” gender markers. The lawsuit notes Schlacter received his new passport in February.

“The passport has his correct legal name, but now has an incorrect sex marker of ‘F’ or ‘female,'” notes the lawsuit. “Mr. Schlacter also received a letter from the State Department notifying him that ‘the date of birth, place of birth, name, or sex was corrected on your passport application,’ with ‘sex’ circled in red. The stated reason was ‘to correct your information to show your biological sex at birth.'”

“I, like many transgender people, experience fear of harassment or violence when moving through public spaces, especially where a photo ID is required,” said Schlacter in the press release that announced the lawsuit. “My safety is further at risk because of my inaccurate passport. I am unwilling to subject myself and my family to the threat of harassment and discrimination at the hands of border officials or anyone who views my passport.”

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

Lambda Legal represented Zzyym.

The State Department policy took effect on April 11, 2022.

Trump signed his executive order shortly after he took office in January. Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

A federal judge in Boston earlier this month issued a preliminary injunction against the executive order.  The American Civil Liberties Union filed the lawsuit on behalf of seven trans and nonbinary people.

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Federal Government

HHS to retire 988 crisis lifeline for LGBTQ youth

Trevor Project warns the move will ‘put their lives at risk’

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Robert F. Kennedy, Jr. appears on HBO's "Real Time with Bill Maher" in April 2024. (Screen capture via YouTube)

The U.S. Department of Health and Human Services is planning to retire the national 988 crisis lifeline for LGBTQ youth on Oct. 1, according to a preliminary budget document obtained by the Washington Post.

Introduced during the Biden-Harris administration in 2022, the hotline connects callers with counselors who are trained to work with this population, who are four times likelier to attempt suicide than their cisgender or heterosexual counterparts.

“Suicide prevention is about risk, not identity,” said Jaymes Black, CEO of the Trevor Project, which provides emergency crisis support for LGBTQ youth and has contracted with HHS to take calls routed through 988.

“Ending the 988 Suicide and Crisis Lifeline’s LGBTQ+ youth specialized services will not just strip away access from millions of LGBTQ+ kids and teens — it will put their lives at risk,” they said in a statement. “These programs were implemented to address a proven, unprecedented, and ongoing mental health crisis among our nation’s young people with strong bipartisan support in Congress and signed into law by President Trump himself.”

“I want to be clear to all LGBTQ+ young people: This news, while upsetting, is not final,” Black said. “And regardless of federal funding shifts, the Trevor Project remains available 24/7 for anyone who needs us, just as we always have.”

The service for LGBTQ youth has received 1.3 million calls, texts, or chats since its debut, with an average of 2,100 contacts per day in February.

“I worry deeply that we will see more LGBTQ young people reach a crisis state and not have anyone there to help them through that,” said Janson Wu, director of advocacy and government affairs at the Trevor Project. “I worry that LGBTQ young people will reach out to 988 and not receive a compassionate and welcoming voice on the other end — and that will only deepen their crisis.”

Under Trump’s HHS secretary, Robert F. Kennedy, Jr., the agency’s departments and divisions have experienced drastic cuts, with a planned reduction in force of 20,000 full-time employees. The Substance Abuse and Mental Health Services Administration has been sunset and mental health services consolidated into the newly formed Administration for a Healthy America.

The budget document reveals, per Mother Jones, “further sweeping cuts to HHS, including a 40 percent budget cut to the National Institutes of Health; elimination of funding for Head Start, the early childhood education program for low-income families; and a 44 percent funding cut to the Centers for Disease Control, including all the agency’s chronic disease programs.”

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U.S. Supreme Court

Supreme Court hears oral arguments in LGBTQ education case

Mahmoud v. Taylor plaintiffs argue for right to opt-out of LGBTQ inclusive lessons

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Tuesday heard oral arguments in Mahmoud v. Taylor, a case about whether Montgomery County, Md., public schools violated the First Amendment rights of parents by not providing them an opportunity to opt their children out of reading storybooks that were part of an LGBTQ-inclusive literacy curriculum.

The school district voted in early 2022 to allow books featuring LGBTQ characters in elementary school language arts classes. When the county announced that parents would not be able to excuse their kids from these lessons, they sued on the grounds that their freedom to exercise the teachings of their Muslim, Jewish, and Christian faiths had been infringed.

The lower federal courts declined to compel the district to temporarily provide advance notice and an opportunity to opt-out of the LGBTQ inclusive curricula, and the 4th U.S. Circuit Court of Appeals determined that the parents had not shown that exposure to the storybooks compelled them to violate their religion.

“LGBTQ+ stories matter,” Human Rights Campaign President Kelley Robinson said in a statement Tuesday. “They matter so students can see themselves and their families in the books they read — so they can know they’re not alone. And they matter for all students who need to learn about the world around them and understand that while we may all be different, we all deserve to be valued and loved.”

She added, “All students lose when we limit what they can learn, what they can read, and what their teachers can say. The Supreme Court should reject this attempt to silence our educators and ban our stories.”

GLAD Law, NCLR, Family Equality, and COLAGE submitted a 40-page amicus brief on April 9, which argued the storybooks “fit squarely” within the district’s language arts curriculum, the petitioners challenging the materials incorrectly characterized them as “specialized curriculum,” and that their request for a “mandated notice-and-opt-out requirement” threatens “to sweep far more broadly.”

Lambda Legal, the Leadership Conference on Civil and Human Rights, PFLAG, and the National Women’s Law Center announced their submission of a 31-page amicus brief in a press release on April 11.

“All students benefit from a school climate that promotes acceptance and respect,” said Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal.  “Ensuring that students can see themselves in the curriculum and learn about students who are different is critical for creating a positive school environment. This is particularly crucial for LGBTQ+ students and students with LGBTQ+ family members who already face unique challenges.”

The organizations’ brief cited extensive social science research pointing to the benefits of LGBTQ-inclusive instruction like “age-appropriate storybooks featuring diverse families and identities” benefits all students regardless of their identities.

Also weighing in with amici briefs on behalf of Montgomery County Public Schools were the National Education Association, the ACLU, and the American Psychological Association.

Those writing in support of the parents challenging the district’s policy included the Center for American Liberty, the Manhattan Institute, Parents Defending Education, the Alliance Defending Freedom, the Trump-Vance administration’s U.S. Department of Justice, and a coalition of Republican members of Congress.

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