The discriminatory bill would see transgender students required to use separate facilities to protect ‘bodily rights’ of ‘biological boys and girls’

South Dakota is poised to enact the first statewide restrictions on transgender students in the country, after the senate on Tuesday approved a bill forcing transgender students to use separate restrooms and locker rooms.

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The bill is headed for the desk of Governor Dennis Daugaard, a Republican who is receptive to it but has not committed to signing it without further study. The South Dakota senate passed the bill by a vote of 20 to 15. The house passed the bill 58 to 10.



The measure, which civil rights groups instantly decried as discriminatory, would open a new front in the increasingly contentious fight over the treatment of transgender individuals in public spaces.

“It is distressing and disturbing that South Dakota legislators would jeopardize the state school systems’ funding and the lives of South Dakota youth in an effort to single out transgender students for discrimination, harassment, and exclusion,” Kris Hayashi, the executive director of the Transgender Legal Center said in a statement. “Every single child, including transgender youth, should have the opportunity to succeed and be treated fairly by our schools and elected officials.”

Lawmakers, by contrast, portrayed the bill as a privacy measure. Time reports that the measure’s sponsor, Republican Fred Deutsch, said it was necessary to protect the “bodily privacy rights” of “biologic boys and girls”. The bill does not force transgender students to use facilities based on the sex they were assigned at birth but calls for school to make “reasonable accommodations”, such as setting aside unisex or staff bathrooms and locker rooms.

But federal civil rights investigators, as well as medical professionals who treat transgender students and the students themselves, have said that forcing trans students to use separate facilities is a form of discrimination.

The Transgender Legal Center warned on Tuesday that South Dakota’s new law could open up South Dakota schools to lawsuits and the loss of their federal funds.

The Department of Justice and the Department of Education have both ruled that under Title IX, a federal law banning gender discrimination, schools must allow transgender students to have unfettered access to bathrooms and locker rooms that match their gender identity. In November, civil rights officials with the Education Department threatened a Palatine, Illinois school district with the potential loss of nearly $6m in federal funds if it did not give a transgender girl unfettered access to the girls’ locker rooms.

The school boards of Gloucester County, Virginia and Van Buren, Michigan have both faced lawsuits over their refusal to give male trans students access to the boys’ restrooms. The lawsuit against the Gloucester County School Board is on appeal in the fourth circuit court, where the case could soon result in a significant ruling: if an appeals panel decides to hear the case, it would be the highest court in the country to rule on the issue of trans peoples’ access to facilities matching their gender identity.

So-called bathroom bills have cropped up across the country as the transgender rights movement has grown in size. At least five states have considered similar measures in the past year. And the politics of transgender rights have spilled over into broad discrimination fights. In Houston this November, voters rejected a ballot measure containing broad anti-discrimination protections amid a virulent campaign claiming the ordinance would allow predators to stalk children into bathrooms.

The measure is not the only one South Dakota lawmakers are considering in order to restrict transgender students.

One week ago, the South Dakota house passed a bill that repeals a policy by the South Dakota High School Activities Association permitting transgender students to participate in school sports according to their gender identity. “A student’s sex is determined by the student’s chromosomes and the sex recorded on the student’s official birth certificate,” the bill reads.

Another bill prevents the state from taking “discriminatory action” against those with “a sincerely held religious belief or moral conviction” against transgender people, or gay and lesbian people; thereby effectively permitting individuals and organizations to discriminate against them for religious reasons. That bill, HB 1107, passed the house on 8 February.

“This could mean that homeless shelters that refused to accept single mothers or gay children would still be entitled to a government contract,” said a spokeswoman for the American Civil Liberties Union. “It could mean that licensed counselors can condemn their clients but still be entitled to practice the profession.”