Dana Ferguson

dferguson@argusleader.com

Transgender students would be barred from using bathrooms, locker rooms and shower facilities of the gender with which they identify if they don't correspond with their biological sex under a bill advanced by a House committee Monday.

The House Committee on State Affairs passed on a 10-3 vote largely on party lines with Democrats and Rep. Roger Solum, R-Watertown, voting against. The bill was also amended in the committee to exempt the Attorney General's office from being required to represent a school district if a lawsuit arose.

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Under the proposal, transgender students who don't want to use the facilities based on their biological gender would have to submit a request to their school district for accommodation in separate facilities.

Conservative groups supported the measure during the committee hearing Monday morning and spokeswomen for the American Civil Liberties Union and the state's social workers opposed the bill, saying it would prompt legal action.

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The measure's sponsor, Rep. Fred Deutsch, R-Florence, said the bill was his effort to create a solution to protect both transgender and non-transgender students in the most private places in school buildings. He also told the committee that the state should create a policy to prevent future conflict.

“It’s only a matter of time before a transgender student says, ‘I want to shower with the opposite sex,’ and we start a fire storm,” Deutsch said.

But lawsuits would likely be inevitable whether or not the state created a policy, Deutsch said. He said existing federal opinion on the subject wasn't sufficient to bar schools from requiring students to use facilities based on biological sex. He said the U.S. Department of Education under President Barack Obama incorrectly interpreted the Title IX rules and South Dakota shouldn't follow the rule until it is decided in court.

“This is a way for out state to say, ‘Back off, federal government,’” Deutsch said.

A handful of school districts across the country have faced legal challenges to similar policies that bar transgender students from using bathrooms and locker rooms of the gender with which they identify. The U.S. Department of Education and the Department of Justice have sided with transgender students in saying that school districts that require them to use a separate restroom are in violation of Title IX rules.

Advocates from a handful of conservative groups said they backed the bill and would offer pro bono legal counsel if school districts were sued for the policy.

American Civil Liberties Union of South Dakota Policy Director Libby Skarin told the committee that passing the measure would create a discriminatory atmosphere for transgender students and a "legal mess" for schools.

"These kids want only to go to school and to live their lives authentically," Skarin said. "Kids do feel when they're being forced to use a separate bathroom that they're different. Nobody wants to be in that twilight, nobody wants to be pointed out."

The ACLU last week launched a "potty police" petition aimed at discouraging lawmakers from backing the bill. As of Monday that online petition had 3,890 supporters.

The bill must be approved by both chambers of legislature and signed by Gov. Dennis Daugaard before it becomes law.

Follow Dana Ferguson on Twitter @bydanaferguson

ACLU launches 'Potty Police' petition against transgender bill