Dana Ferguson

dferguson@argusleader.com

The South Dakota Legislature is poised to take the lead nationally when it comes to changing laws dealing with transgender residents.

A handful of proposals would restrict the rights of transgender people and enhance the protections for those who refuse to recognize that choice. That discussion has attracted the attention of national civil rights and LGBT groups, who are now on the offensive and have shifted their attention and forces to Pierre for a battle over transgender rights.

Lawmaker to trans community: 'Sorry you're so twisted'

South Dakota is not the only state that is considering policies that require transgender students to use separate restrooms, and expand the ability of conservative Christians to refuse protection to gay people, unmarried mothers and the transgender community. But LGBT advocates say the state's approach is shocking.

“South Dakota is even at the front of that trend of anti-transgender policy," said Kate Oakley, senior legislative counsel for the Human Rights Campaign. “And it’s taking a slightly different form in South Dakota, a more egregious form in South Dakota."

Backers of the measures say they are necessary to offset decisions made by President Barack Obama's administration. They say his interpretation of a federal anti-discrimination policy expands too far in covering transgender students and reprimands have been unwarranted for conservatives affiliated with the government who voice their religious views.

“We’ve never seen such an unprecedented attack on religious expression,” said Rep. Scott Craig, a Rapid City Republican who is sponsoring one of the bills. “The call or the cry for tolerance is definitely a one-way street."

Jody Herman, a transgender policy expert at the University of California, Los Angeles, said a national crop of transgender measures sprung up in the past year largely because of the Supreme Court’s 2015 ruling on marriage equality, the media attention surrounding Caitlyn Jenner's coming out as transgender and Houston voters' decision to vote down an equal rights ordinance there.

"Those opposed to anti-discrimination provisions have been emboldened," Herman said. "It's my feeling that it's a backlash wave kind of like the one against same sex marriage a few years ago."

And transgender South Dakota residents say they feel targeted by the measures which, if passed, could have drastic effects on their lives.

Whitney: Shame on you, South Dakota

Bathroom and sports team bans

Rep. Fred Deutsch, R-Florence, brought a bill this session that would bar transgender students from bathrooms, locker rooms and shower rooms unless they correspond with their biological sex. He said it was intended to promote privacy for all students and it would require schools to provide a "reasonable accommodation" for transgender students.

Deutsch acknowledged that the measure would likely face lawsuits if schools opted to enact it, but he said schools could also face litigation if they allowed transgender students to use restrooms that didn't correspond with their biological sex. He also said the federal Department of Education's interpretations of Title IX under the Obama administration could be overturned under a Republican president.

The federal law prohibits discrimination based on sex in any education program that receives federal dollars. Before 2014 it wasn't clear whether the law protected transgender students. Schools that don't comply with Title IX laws could lose federal funding.

Dale Bartscher, a lobbyist for Family Heritage Alliance Action, said the measure "resonated" with South Dakota residents.

“We think the bill compassionately helps those students who are gender-confused," Bartscher said.

Thomas Lewis, a transgender high school senior in Sioux Falls, said he has been shunned out of both the men's and women's restrooms because of his identity.

The 18 year old said he doesn't use the bathroom at school and instead waits until the lunch break to relieve himself at home. He said holding it for that many hours can cause discomfort and distraction in the classroom. Providing a separate facility for him to use wouldn't make it better for him or for his peers.

“This is a bill that’s almost like segregation,” Lewis said. “We are taking away someone’s fundamental rights because the government says it’s a good idea.”

Transgender 'community is scared by these bills'

In response to the bills, civil liberties groups and national equality organizations have bulked up their efforts, enlisting additional staff and taking to social media for support.

The American Civil Liberties Union (ACLU) of South Dakota brought on additional staff last month and launched a social media campaign against the measure. In the organization's "potty police" petition, the group asks lawmakers not to approve the bill.

Libby Skarin, policy director for the ACLU of South Dakota, said she planned to testify against the measure when it was filed before legislative session began. Skarin said she was shocked to see three other bills aimed at restricting the rights of transgender people filed in the last two weeks.

“It’s really disturbing that this session so far has unleashed one of the most aggressive attacks on transgender youth in the country,” Skarin said. “This isn’t just a bad policy idea or a bad bill, this is a package of bills that make clear of the fact that they’re trying to target a very specific community."

George Takei, an activist and actor known for his role as Hikaru Sulu on Star Trek, posted on his Facebook page that the bathroom bill would "single them [transgender students] out and make them pariahs in their own schools and set a worrisome national precedent."

He urged his followers to sign the ACLU's petition.

The measure passed in the House and now moves to the Senate.

A second bill would bar transgender students from playing on high school sports teams unless their gender coincided with their biological sex.

The bill's author, Rep. Roger Hunt, R-Brandon, said the South Dakota High School Activities Association didn't take appropriate action two years ago in creating a transgender policy that allows transgender students to play on the team of the gender with which they identify, even if that doesn't correspond with their sex at birth. The association requires students in that situation to file a request that is investigated and approved through their agency.

The association has not yet received a request.

Editorial: Setting transgender policy for schools no place for S.D. Legislature

The bill's supporters say the current system could disadvantage biological women in sports who they say could lose their spots on teams to transgender women. Opponents say the bill would be taking a step backward and could create problems with Title IX.

Tamara Jeanne Urban, 62, is a transgender South Dakotan who said the policies could harm the state's transgender youth, who already have a hard time coming out.

“These would basically paint a target on the backs of transgender students in South Dakota,” Urban said. “There’s no rational basis for these transgender bills other than fear-mongering."

The measure is set to come up in the House next week.

Erasing transgender identity

Rep. Jim Bolin, R-Canton, brought a bill last week that would require cities, school districts, state agencies and other public bodies to assess an individual's gender by using his or her birth certificate in any situation where the document is being considered, rather than relying on the gender with which the individual identifies.

Bolin said he brought the bill to uphold the validity of state documents.

“The notions that are being claimed as true fundamentally challenge the human condition,” Bolin said. "The claims that are being made are profound as to the nature of human beings."

But Oakley said the bill could pose real logistical problems as many facts written on a birth certificate can change later in life. She cited name changes, change in size and weight and gender as examples.

“Trying to tie people to this document that’s issued within hours of birth and saying that’s the end all be all is really problematic,” Oakley said.

Skarin said the measure would effectively "erase transgender identity completely" in the state's eyes.

The bill has not yet been scheduled for a committee hearing.

The fight for religious freedom

Craig is bringing a fourth bill that would provide additional protections to conservative Christians who express their beliefs that marriage should be between one man and one woman, couples shouldn't have sex until they're married and gender is determined at birth.

The Republican said government agencies have reprimanded Christians for voicing their views on sex and marriage and the group has been unable to exercise its constitutional right to freedom of religion.

"There's an ever increasing voice that says sexual liberty trumps religious liberty," Craig said. "But the founding fathers didn't found this country on the values of sexual liberty."

Opponents say the speech is already protected under both the United States Constitution and the South Dakota Constitution and adding an additional level of protection for people with a certain set of views could allow for discrimination with no way to reprimand against it.

Bartscher, of the Family Heritage Alliance Action, said the bill is aimed at protecting those who've been silenced for fear of retribution.

“None of these bills is for discriminating – who’s been discriminated against are the believers, the men and women who hold to their Christian values,” Bartscher said.

Whitney: Shame on you, South Dakota

Craig said some Christians face opposition now when they express their belief that people are created in the gender they're meant to be and those who identify as transgender have a mental disorder.

“You look in the mirror and you know exactly what it is but something in the brain chemistry says, ‘I’m not,’ even when you are,” Craig said. “So who’s going to stand for truth? Ironically, we have to protect those who speak truth even when they’re the ones who want to provide viable help.”

Lewis, the Sioux Falls student, said he's scared the bills could allow for bullying such as he's experienced at work. The lawmakers didn't have his best interest in mind when they drafted these policies, Lewis said.

“It says to me that they are a bunch of old white guys who don’t like who I am and they don’t see me as human,” Lewis said.

The next steps

The bills must continue circulating through the Capitol. Both legislative chambers and the governor must sign off on each one before they become law.

Gov. Dennis Daugaard said he hadn't spent much time reading the measures but would consider each if they came to his desk.

"I confess, I'm probably in need of more education about transgender about how one arrives at a decision to change one's gender identity," Daugaard said. "To me it is puzzling and just doesn't come naturally to me to fully understand that."

Daugaard also said he would hear testimony on both sides before making up his mind.

Follow Dana Ferguson on Twitter @bydanaferguson