S.D. might take up transgender bathroom bill in 2016

South Dakota lawmakers could again take up transgender students' rights in 2016.

State Rep. Fred Deutsch, R-Florence, said Monday he plans to bring a bill that would require school districts to establish bathroom, locker room and shower facilities based on students' biological sex.

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. Those students would be barred from using the facilities of the gender with which they identify if it doesn't correspond with their biological sex.

But an individual rights group says the policy, if approved, could be in violation of federal anti-discrimination laws.

Deutsch said he was inspired by a failed 2015 bill that would have required transgender athletes to enroll in high school activities based on the biological sex listed on their birth certificates.

"The bill that we heard last year dealing with transgender athletes just doesn't sit right with me," Deutsch said. "It's something I've been praying about and thinking about for a while."

Deutsch said what he viewed as a bigger issue was ensuring that students feel comfortable when they are changing or using the restroom.

"I don't really care what team they play on … the real issue is protecting the privacy of all of our students," he said. "We should respect that privacy, we should respect the right of our sons and daughters to dress privately."

Libby Skarin, policy director for ACLU of South Dakota, said the bill could be damaging to transgender students. Skarin pointed to studies that indicate that transgender students face higher rates of harassment, assault and suicide.

"The federal Department of Education has made it crystal clear that prohibiting students from using restrooms and locker rooms according to their gender identity violates Title IX," Skarin said. "Forcing a student to use a separate private area to dress for gym or sports simply because they are transgender singles them out from their peers and exposes them to further isolation or harm."

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.

Dale Bartscher, executive director of the Family Heritage Alliance, said the legislation could preempt a case against a South Dakota school district by shifting the responsibility to the state.

"It will be on our doorstep soon. We might as well face it head on," Bartscher said.

Bartscher said he anticipated a legal showdown with the feds if the bill passed in the Legislature.

"We expect that challenge, we expect that battle." he said.

Bartscher said that the conservative organization would likely support the bill.

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