Dana Ferguson

dferguson@argusleader.com

A bill setting statewide bathroom policies for transgender students would almost certainly lead to costly legal battles between school districts and the federal government, critics told a Senate committee Thursday.

"We don't believe that local taxpayer dollars should be used to defend a state law," said Rob Monson, executive director of School Administrators of South Dakota. "Monies like this could be better spent in the classroom, not on legal defense."

Monson's organization supported the legislation before the House State Affairs Committee stripped it of a provision that would have required the state to defend school districts faced with federal discrimination lawsuits.

After almost two hours of legal questions offset by emotional testimony from transgender South Dakotans and their friends and family, the Senate Education Committee advanced a measure 4-2.

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House Bill 1008 would bar transgender students from using bathrooms, locker rooms and shower facilities of the gender with which they identify if that doesn't correspond with their biological sex. 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. The bill would put schools in apparent violation of federal civil rights regulations.

Without involvement of the attorney general's office, local districts would be left to shoulder the legal costs, though a conservative group lobbying in favor of the legislation offered to represent South Dakota districts pro bono if challenged.

The bill's supporters, though, said school districts could end up in court without the legislation.

Rep. Fred Deutsch, R-Florence, the bill's author, said the measure is designed to ensure the privacy of transgender and non-transgender students in the most private areas in schools. He said the federal government has overstepped its authority in interpreting Title IX regulations so as to require school districts to accommodate transgender students.

Title IX is a federal law that prohibits discrimination based on sex.

But gender shouldn't be interpreted as synonymous with sex under those regulations, Deutsch told the committee. He said the Obama administration has extended the protections to those who identify as male or female, when they should be restricted based on biological sex determined at birth.

He said, at present, concerned parents could sue school districts if they upheld a Title IX policy that, under recent interpretation, requires a district to allow transgender students unrestricted access to restrooms, locker rooms and shower rooms with other students of the gender with which they identify. A school in Palatine, Ill., was found to be in violation of the federal law last year when it didn't allow a transgender girl unrestricted access to the girls' locker room.

"If this law is passed it creates uniformity among all schools," Deutsch said. "If one school district is sued and wins the case, it applies to all school districts in South Dakota. If you do not pass this, then each school district is left to its own devices, each school district takes on this issue individually."

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Libby Skarin, policy director for the American Civil Liberties Union of South Dakota, said advancing the measure would create an "expensive legal mess."

Matt Sharp, legal counsel for the conservative Christian group Alliance Defending Freedom, said the firm would represent school districts pro bono if they faced lawsuits as a result of the measure.

Roger Tellinghuisen, a lobbyist for the South Dakota Trial Lawyers and former South Dakota attorney general, said the firm's offer to defend school districts was generous, but not binding and it wouldn't help a district that had to pay back additional fees.

"If you’re going to mandate that school districts violate federal law then I think it’s only fair that the state of South Dakota not only stand ready to defend them when they get sued, but that they be ready to write the check for the damages," Tellinghuisen said.

The measure now moves to the Senate floor. If passed there, it will move to the governor's desk where he could sign the measure into law.

Follow Dana Ferguson on Twitter @bydanaferguson

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