Transgender Restroom Policy Fix Passes Committee


The South Dakota House State Affairs Committee considered HB 1008 today which would require confused students to use the restroom/locker room appropriate for their biological sex, and not allow them to use a restroom/locker room of the opposite sex.

Many South Dakotans will remember the politically correct, pro-homosexual/transgender policy adopted by the South Dakota High School Activities Association (SDHSAA) a couple of years ago, and which the South Dakota Legislature lacked the common sense and courage to deal with last year.

The bill’s prime sponsor, Rep. Fred Deutsch, spoke about the bill. Deutsch said the issue is about privacy, in a place where privacy is most important at school.  He said that rather than being about the SDHSAA policy, the bill is needed because of the Obama Administration’s new interpretation of Title IX which says:

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No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

However, said Deutsch, in April 2014, the Obama Administration’s Office of Civil Rights published a “significant guidance document” which created a new interpretation of Title IX that now includes “gender identity.”  Under the new interpretation, even though a student is born genetically and sexually a male, a boy claiming he is a girl must be accommodate by schools and humored in his assertion that he is a girl. This includes access for the boy to restrooms, locker rooms and shower rooms reserved for girls. Deutsch said the Obama Administration is aggressively pursuing schools that do not conform to its “interpretation.” Deutsch said a school in Illinois tried to accommodate a confused student by giving them a privacy curtain behind which to change, but the Obama Administration maintained that a boy should have full access to girl’s facilities if he claims he is a girl.

Deutsch said his bill would affirm and require that schools maintain privacy facilities for girls who are genetically girls and facilities for boys who are genetically boys.

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Deutsch also said that although those opposed to his bill might argue that it would put South Dakota at odds with established federal law, it does not. It is only counter to the opinion of some Obama Administration officials. He also said federal courts have ruled against the Obama Administration’s “interpretation.” Deutsch said no school has ever lost federal funding because they maintained separate privacy facilities for both sexes.

Also speaking in favor of the bill was Matt Sharp, an attorney with Alliance Defending Freedom. Sharp said he wanted to speak to the legal considerations of the issue. He said allowing boys to use girl’s facilities and vice versa was demeaning and humiliating to those who expect the privacy of their own biological sex in those circumstances. Children are still developing and are very body-conscience. Further, consider a young girl who might have been sexually abused, and how she might feel if she entered a privacy area and saw a male there. This situation could trigger severe emotional and psychological trauma for the girl. Sharp said schools have a duty to protect children in their custody, and this bill would help protect schools from financial liability, as well as protecting the privacy of all South Dakota students.

Dale Bartscher of the Family Heritage Alliance also spoke in favor of the bill, pointing out that were a school to be sued because of this legislation, two legal foundations have offered to defend the school pro bono. Liberty Counsel and Alliance Defending Freedom will both represent individuals and organizations under fire in such situations.

Cindy Flakoll of Concerned Women For America Legislative Action Committee, and Travis Benson of the Catholic Diocese of Sioux Falls also spoke in favor of the bill.

Elizabeth Skarin of the American Civil Liberties Union (ACLU) spoke in opposition to the bill, stating that the bill causes “actual harm” to transgender students, and could result in schools being sued. However, most of her time was spent not on discussion of the actual facts but rather the subjective feelings of confused children, and further allusions to legal intimidation from the Left if the bill passes.

Jenae Hansen of the National Association Of Social Workers-South Dakota also spoke in opposition.

Jeromy Pankratz from the South Dakota Attorney General’s office opposed the latter part of the bill which states that the attorney general would represent the school if sued by a Leftist.  Pankratz stated that if that language was removed, the Attorney General’s office would not oppose the bill. He said that right now there is no precedent for the Attorney General’s office doing this, and if a school did not enforce the law, then the Attorney General’s office could theoretically find itself on both sides of the argument.

Rep. Jim Bolin made a motion to amend the bill, which was seconded by Rep. Don Haggar, to remove the following language which was in the original bill:

If any public school district, school district officer or employee, school board, or school board member is sued in state or federal court as a result of a decision based upon and consistent with a student’s biological sex, notwithstanding any assertion that the student’s gender is different than the student’s biological sex, the attorney general shall represent the school district, school district officer or employee, school board, or school board member at no cost to the school district, school district officer or employee, school board, or school board member, and the State of South Dakota shall assume all financial responsibility for the legal expenses. The legal expenses for which the state is responsible include any award for monetary damages or attorneys’ fees and costs which may be awarded and for which the school district, school district officer or employee, school board, or school board member would otherwise be responsible.

Wade Pogany of the Associated School Boards Of South Dakota spoke specifically about the amendment to strike the “hold harmless” section of the bill, asking that it be left in.  He said that while he appreciates the offer of legal representation by Liberty Counsel and the Alliance Defending Freedom, the school boards would really like to have the state of South Dakota backing them also.

Bolin asked Hansen if she thought sexual identity was different from gender identity, and if so, to explain that. Hansen said it was different. She said sexual identity was your sexual preference while your gender identity is your personal belief of whether you’re male or female. Bolin then asked whether she recognized these distinct categories are recognized on official documentation such as birth certificates. Hansen said she believed the were. Bolin then asked if a person could deny one documented fact from an official document (i.e. their sex), could they also deny other documented facts such as their birth date from an official state document.  Hansen said she wasn’t a lawyer so she couldn’t say for sure.

Rep. Dean Wink asked Deutsch if the courts have already upheld what we are already doing in South Dakota, why we need this bill. Deutsch said the federal government is pressuring schools across the country, and this is a way for our state to say, “Back off, federal government.” Deutsch said our school districts are at risk, and school boards in his district came to him asking for protection.

The amended bill passed the House State Affairs Committee on a 10-3 vote with one of those “nay” votes a “Republican,” Roger Solum of Watertown.

Bartling Nay Bolin Yea Haggar (Don) Yea
Hawley Nay Langer Yea Mickelson Yea
Munsterman Yea Solum Nay Stevens Yea
Verchio Yea Wink Yea Westra Yea
Gosch Yea

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Bob Ellis has been the owner of media company Dakota Voice, LLC since 2005. He is a 10-year U.S. Air Force veteran, a political reporter and commentator for the past decade, and has been involved in numerous election and public policy campaigns for over 20 years. He was a founding member and board member of the Tea Party groups Citizens for Liberty and the South Dakota Tea Party Alliance. He lives in Rapid City, South Dakota with his wife and two children.
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