Stu Whitney

swhitney@argusleader.com

It isn’t a fundamental right to be proud of the place in which you live, but it can lead to brighter days.

Based on recent activity in the South Dakota Legislature, where bills infringing on civil rights are springing forth with alarming frequency and drawing early support, darkness is setting in.

Despite a national trend of greater acceptance for lesbian, gay, bisexual, and transgender (LGBT) citizens and their constitutional right to equal protection under the law, South Dakota has become a focal point of resistance, with discrimination as a rallying cry.

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The transgender community is the most targeted, with proposed legislation aiming to prevent them from using school restrooms aligned with their gender identity, participating in interscholastic sports in relation to that identity and from having that identity recognized by government agencies.

Never mind that the U.S. Department of Justice has ruled that such restrictions amount to sex discrimination and are in violation of federal Title IX legislation. Just as Arkansas became symbolically linked to school segregation by futilely attempting to thwart federal law in 1954, South Dakota appears determined to become a flash point for intolerance on the transgender issue.

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That willingness among some legislators is supported, and in some cases is fueled by, national Christian conservative groups who seek opportunities to turn back the clock, and they have found the ideal state in which to do it.

Most notable is Alliance Defending Freedom, an Arizona-based non-profit whose cadre of lawyers aims to "transform the legal system and influence the culture” by bolstering legislation that dovetails with its hardcore Christian ideology and curtails LGBT rights.

One of the fundamental tenets of the U.S. Constitution is that laws are not crafted to reflect an establishment of religion, but that doesn’t stop people from trying. Alliance Defending Freedom (ADF) fellowship literature cryptically refers to the group’s desire to “recover the robust Christendomic theology of the 3rd, 4th and 5th century.”

Well, you’ve come to the right place.

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With South Dakota lawmakers raising eyebrows nationally with a steady stream of legally and morally questionable proposals, the evangelical advocacy group is working on fertile ground.

Matt Sharp, an ADF legal counsel who plays a key role on the group’s “Freedom of Conscience Team,” testified in Pierre this week on bills restricting restroom access and athletic eligibility for transgender students. He also played a role in amending legislation by offering to provide free legal assistance to school districts sued for violating federal guidelines in such cases.

The notion of public school districts being represented by a conservative Christian organization for thwarting the U.S. Department of Justice apparently didn’t cause concern, since the bathroom bill cruised through the House by a 58-10 vote and is headed to the Senate. The athletic eligibility bill passed out of committee and will be heard in the House.

In keeping with the trend, the House Committee on State Affairs passed a measure this week that would allow people or organizations to discriminate against same-sex couples, unmarried pregnant women or transgender people without jeopardizing state contracts or employment.

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The bill’s main sponsor is Rep. Scott Craig, R-Rapid City, a pastor at BigHorn Canyon Community Church who serves on the board of directors for the Family Heritage Alliance, a conservative advocacy group focused on “promoting and defending faith, family, and freedom.”

When the U.S. Supreme Court legalized same-sex marriage last summer, Craig suggested that Attorney General Marty Jackley allow county officials to refuse issuing marriage licenses to gay couples for religious reasons, an action that Jackley did indeed take.

“Freedom of religious expression is monumental,” Craig said. “The need to secure that cannot be overstated.”

Testifying in favor of Craig’s discrimination bill was Sharp and ADF, whose anti-gay crusade included a broader measure in Arizona in 2014 that would have allowed businesses the right to deny service to gay and lesbian customers based on religious beliefs.

After corporations and athletic organizations such as Delta Air Lines, the Super Bowl host committee and Major League Baseball spoke out against the proposed law, it was ultimately vetoed by Gov. Jan Brewer, who warned against “unintended and negative consequences.”

“It could divide Arizona in ways we cannot even imagine and no one would ever want,” Brewer said at the time. “Religious liberty is a core American and Arizona value. So is non-discrimination.”

When Indiana passed its controversial Religious Freedom Restoration Act last year, cries of LGBT discrimination were swift and forceful. Public denunciations and travel bans led to a softening of the measure, but the city of Indianapolis has lost more than $60 million in future convention business since the law passed, according to the visitors bureau.

South Dakota is rarely viewed as a bastion of enlightenment, but the tone of this legislative session seems destined to draw accusations that policy is being shaped by ignorance and fear. It’s one thing to feel discomfort over a still-evolving social reality and quite another to stigmatize it.

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When Gov. Dennis Daugaard was asked about schools using segregated bathrooms for transgender students, he raised no concerns, legal or otherwise. “It seems like a good accommodation,” he said, sidestepping the possibility of alienating a group that studies show has a higher risk of suicide when discriminated against.

Similar to those who ignore science to label homosexuality a “choice” or even link it to pedophilia, supporters of these bills insinuate that transgender students seek to sexualize the restroom setting or find a competitive edge in the athletic arena, a stance both reactionary and reckless.

The South Dakota Activities Association should be commended for crafting a policy that allows transgender student-athletes to remain true to their gender identity while including competitive safeguards. The policy calls for an independent hearing officer (such as a judge or current member of the state bar) to review submitted transcripts and family statements before rendering a decision on eligibility.

The Office for Civil Rights has made it clear that discrimination against transgender students falls under federal Title IX law and that public schools are accountable for ensuring the safety and inclusion of all students in a school-sponsored setting. The SDHSAA guidelines came after a survey showed that 77 percent of South Dakota high school superintendents favored the development of a statewide policy.

That wasn’t good enough for Rep. Roger Hunt, R-Brandon, who suggested last summer that “visual inspection” be used as part of a process to officially determine a person’s gender in South Dakota. Hunt sponsored the current bill seeking to override the SDHSAA transgender protocol, drawing the attention (again) of Sharp and ADF.

Sharp’s involvement in South Dakota’s transgender discussion fits a recent pattern. He tried to assert influence in western New York a few months ago, challenging a school’s decision to follow federal guidelines by allowing a transgender student to use the boys’ locker room and restrooms.

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In December, he filed a “friend of the court” brief on behalf of a local Christian advocacy group with the U.S. Court of Appeals in Virginia in a high-profile case also involving transgender restroom access. The ruling in that case could provide clarity moving forward as both sides seek judicial precedent to bolster their side of the argument.

For South Dakota, though, there is no time to wait. There are bills in circulation that reflect the way in which we choose to treat people in this state, and how we wish to be viewed.

There has been quite a bit of discussion about keeping college graduates here at home, luring professionals to our cities, preparing South Dakota for the transition from an older, rural demographic to one that might brighten our future.

What kind of culture do we want to promote? One that sends a frightened transgender kid into a makeshift bathroom, refuses service to a same-sex couple or declines a promotion to an unmarried pregnant woman?

Pushing an agenda of discrimination under the guise of “religious freedom” is an irresponsible use of power, as is distorting the notion of what many South Dakotans consider the word “Christian” to mean. Allowing evangelical outsiders to tell us how to treat people? We’ve always been better than that.

Of course, in a representative democracy, silence can be deafening. Demanding sound judgment and basic decency from public officials is the job of citizens (and media), and South Dakota becomes more remote and irrelevant if our voice falters.

As the darkness unfolds, our choice is simple. Take pride in the place we call home or live to curse the time we looked away and let others turn out the lights.

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Argus Leader Media city columnist Stu Whitney can be reached at swhitney@argusleader.com. Follow him on Twitter @stuwhitney