Though widely hyped bills attacking LGBT equality in states like Indiana have already floundered, South Dakota is proceeding with several problematic bills. Wednesday morning, the House State Affairs Committee advanced two anti-LGBT bills by 10-3 votes, encouraged along by several conservative groups.
HB 1107 mirrors the First Amendment Defense Act introduced in Congress; it prevents the state from “discriminating” against any organization — i.e. altering tax treatment, fining, denying a charitable deduction, withholding grants or contracts, or terminating benefits — if that organization refuses to serve same-sex couples. In other words, it would require state-subsidized discrimination.
HB 1112 would ban transgender athletes from participating on school sports teams that match their appropriate gender. The committee amended the bill such that it doesn’t stipulate that students’ sex is determined by their birth certificates, but it still voids the South Dakota High School Activities Association’s previous decision to recognize transgender athletes. It also requires that the association’s board of directors “may not adopt any transgender policy without the consent of the Legislature.”
The progress these bills are making can be attributed to the time and attention being paid to South Dakota by prominent conservative groups. The Heritage Foundation boasted Tuesday, “this state could soon become first to stop transgender students from using opposite-sex bathrooms.” On hand to testify Wednesday morning was the Family Heritage Alliance (FHA), the South Dakota state affiliate of the anti-LGBT Family Research Council.
But the group with its fingerprints most on this legislation is the Alliance Defending Freedom (ADF). The conservative legal juggernaut insists on its website that it “refrains from participating in or promoting any type of legislation” and “does not lobby government officials,” but that claim doesn’t seem to align with its level of engagement in South Dakota. Indeed, ADF and its legal counsel Matt Sharp seem to be thoroughly involved in crafting and defending the legislation.
In a previous House State Affairs hearing last week, lawmakers advanced a separate bill, HB 1008, which similarly prohibits transgender students from accessing school bathrooms and locker rooms that match their gender identities. The original version of the bill had a provision requiring the state attorney general to defend any school that was sued for the discrimination the bill requires, but at the hearing, that section had been cut.
Rep. Fred Deutsch (R), the bill’s sponsor, explained, “That comes at the request of the attorney general, and it was felt that because we’ve had these independent agencies offer to do pro bono work, it’s no longer needed.” The chair of the committee responded, “That’ll be a good segue into our next proponent,” then introduced Sharp to testify by phone.
Following Sharp’s comments, FHA’s Dale Bartscher presented lawmakers with letters from both the Liberty Counsel and ADF confirming this offer. “If a school district in South Dakota is sued for complying,” he explained, “Alliance Defending Freedom will offer pro bono representation of the school district as long as the facts are amenable to litigation.” Bartscher concluded by saying that FHA “respectfully stands with Liberty Counsel and the Alliance Defending Freedom in asking for your vote yes on HB 1008.”
During Wednesday’s hearing, Sharp testified again, and was given the exclusive opportunity to provide rebuttal after opponents of the legislation testified. During his remarks, however, he made a telling admission about the intention of the bill. Answering a question about HB 1107, Sharp provided his opinion that it would not permit public sector employee to refuse to recognize LGBT people in their official work, but he actually acknowledged that such refusal would, in fact, be “discrimination”:
So that includes employees of both state government, local government, school boards and everything. When state employees are acting within the scope of their employment, they are not entitled to assert this as a defense… All of those entities that are restricted from discriminating, any of their employees are also limited in their ability to assert this as a defense while they’re on the clock.
In addition to repeating familiar lines about how transgender students infringe on “privacy concerns,” Sharp also defended the anti-transgender bill by claiming that it would “reduce the risk of potentially serious injuries to female athletes,” arguing that transgender girls would have some kind of physical advantage due to having been assigned male at birth. Contrary to his claims, physical advantage is largely determined by hormones, and transgender students who are use hormone blockers to delay puberty or who have begun hormone replacement treatment would have no such advantage. This is the same reason why the International Olympic Committee has actually relaxed the requirements for transgender athletes to compete on their appropriate teams in the Olympics. The current policy for transgender athletes that lawmakers are trying to overturn accounts for what advantages a transgender student might have and requires verification from a medical professional who is treating the student.
All three bills advance to the South Dakota House, of which Republicans have an 83 percent voting share. They will likely fare just as well in the South Dakota Senate, where Republicans have a 77 percent voting share. Thanks to the close attention paid by these conservative groups, South Dakota could have truly discriminatory laws on the books within a matter of weeks.