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Anti-trans bill heads to Republican governor's desk

If the governor signs, South Dakota could become the first state to restrict access to public school facilities based solely on a person’s “biological sex.”
South Dakota Gov. Dennis Daugaard speaks during his budget address at the state Capitol in Pierre, S.D., Dec. 8, 2015. (Photo by James Nord/AP)
South Dakota Gov. Dennis Daugaard speaks during his budget address at the state Capitol in Pierre, S.D., Dec. 8, 2015.

All eyes have turned to South Dakota Gov. Dennis Daugaard following the state Senate’s decision to approve legislation banning transgender students from using public school bathrooms and locker rooms that align with their gender identities.

Lawmakers in the Republican-controlled state Senate voted 20-15 Tuesday night to pass House Bill 1008 -- one of four anti-LGBT measures introduced in South Dakota this session and part of a raft of anti-LGBT legislation pending nationwide.

If it's signed by Daugaard, a Republican, South Dakota would become the first state in the country to restrict access to public school restrooms and locker rooms based solely on a person’s “biological sex,” defined in this bill as “the physical condition of being male or female as determined by a person’s chromosomes and anatomy as identified at birth.” The legislation entitles transgender students, who identify with a gender that differs from the one assigned to them at birth, to a “reasonable accommodation” -- which could include a single-stall, unisex, or faculty restroom. But all of those options, transgender students say, stigmatizes and discriminates against them.

Related: Anti-trans bill on the brink of becoming law in South Dakota

"If I were a kid in South Dakota today, I probably wouldn't survive into adulthood,” said ACLU staff attorney Chase Strangio, who is trans, in a tweet. “HB 1008 threatens our community.”

The bill’s proponents have said the measure is intended to protect students’ privacy in the wake of the Department of Education’s 2014 decision to interpret discrimination based on gender identity as a form of sex discrimination, which is prohibited under Title IX of the 1972 Education Amendments. A number of Republican lawmakers who supported the bill said the federal government had overstepped its authority with that interpretation. But opponents argued that it was legislation like HB 1008 -- not the Obama administration -- that had overreached.

“This is truly unneeded regulation,” said Democratic state Sen. Troy Heinert during Tuesday’s floor debate. “Why is it that 35 of us think we know better than the school districts and the parents and the people that it would affect the most?”

Other Democratic opponents warned the bill would lead to numerous Title IX lawsuits, such as one currently awaiting a decision from the 4th Circuit Court of Appeals in Virginia.

“We could be talking about several thousands or millions of dollars if we’re found — if a school is found to be in fault on this issue,” said Democratic state Sen. Scott Parsley.

Daugaard has said the measure seems like a good idea, according to the Argus Leader, and that he plans to research the issue before making up his mind on whether to sign. He also said as far as he was aware, he had not met a transgender person and did not wish to before deciding on the measure so as to remain objective.