Dana Ferguson

dferguson@argusleader.com

South Dakota is one signature away from becoming the first state in the country to enact a law that would bar transgender students from using bathrooms, locker rooms and shower facilities of the gender with which they identify if it doesn't correspond with their biological sex.

The South Dakota Senate approved the bill Tuesday on a 20-15 vote, moving it to Republican Gov. Dennis Daugaard's desk for his approval. Daugaard has said the measure seems like a good idea and plans to research the issue and listen to recorded testimony before making up his mind on whether to make the bill law.

The Republican governor also said as far as he was aware he hadn't met a transgender person and likely wouldn't do so before deciding on the measure so as to ensure objectivity in his decision.

The vote sparked outrage from Democrats and LGBT families and advocates Tuesday afternoon who said the measure is discriminatory, while conservatives marked its passage as a success in maintaining the privacy of South Dakota students.

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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.

Rep. Fred Deutsch, R-Florence, the bill's author, has 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 drafting Title IX regulations that require school districts to accommodate transgender students and they should receive "reasonable accommodations."

But the bill's opponents and school districts have indicated concern about the potential costs schools could take on in defending themselves against lawsuits without the state's help.

Dale Bartscher, spokesman for the conservative Christian group Family Heritage Alliance Action, applauded the Senate's decision and said it was indicative of the Mount Rushmore state's values.

"This is such the right thing to do to protect all of our students," Bartscher said. "It's a privacy bill, it's a modesty bill, it's sensible South Dakota common sense."

But for the state's transgender residents and advocates, it was a blow.

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Rachiel Reurink, 39, said she was shocked to hear that the Senate approved the measure. As she went to search for something on Amazon, she stumbled across the news online. She quickly told her son Thomas Lewis, a transgender senior at Lincoln High School.

"It was just a minute of jaw dropped, 'I can't believe this,'" Reurink said. "I just keep saying, 'It's a mistake.'"

National transgender advocacy groups and the American Civil Liberties Union of South Dakota have campaigned for weeks against the bill and immediately following the vote they issued statements condemning the decision and calling on Daugaard to veto the measure.

In a phone call, Sarah Warbelow legal director of national LGBT advocacy group Human Rights Campaign, said the measure would hurt South Dakota kids and urged Daugaard to meet with transgender people before making up his mind.

"None of us should be making decisions without all the possible information at hand," Warbelow said. "He needs to take into account that legislators are saying this will help transgender kids, but the legislation does the exact opposite."

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During floor session Tuesday, the bill's sponsor Sen. Brock Greenfield, R-Clark, said lawmakers should set emotions aside and work to create a uniform policy for school districts. He said the measure wasn't being brought out of contempt or hate and he warned them that "the sensitivities of our state are on the line."

"We're talking about our youths commingling in bathrooms and locker rooms, biological males and biological females," Greenfield said on the Senate floor. "Do you feel it appropriate for a 13-year-old girl to be exposed to the anatomy of a boy? Or for a boy to be exposed to the anatomy of a girl because of the decisions we make out here?"

Democrats attempted to amend the measure on the floor to no avail. And senators from both parties spoke out against the bill saying it is discriminatory and could create a legal headache for schools that, under the measure, wouldn't be legally protected by the attorney general.

"We're fixing nothing, but we're creating problems," Sen. Bernie Hunhoff, D-Yankton, said.

Hunhoff said the measure could give vacationers reason to boycott the state and for businesses to avoid moving in. Earlier in the day Tuesday, opponents of the bill took over the state's tourism hashtag #HifromSD to speak out against the measure.

Other opponents said the measure would create pain for transgender students and could serve as a gateway for discriminatory policies.

"When does the discrimination stop? Is it just transgender? Or next year is it, 'I don't like blonde hair, blue eyes,' or 'I don't like Natives'?" Sen. Troy Heinert, D-Mission, said. "We're going to tread down a very serious path ... this is exactly how it starts."

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The state's House of Representatives approved the measure on a 58-10 vote last month.

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.

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.

Follow Dana Ferguson on Twitter @bydanaferguson

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