South Dakota is one signature — or five days of inaction — away from setting a devastating new precedent for discrimination against transgender people. House Bill 1008 would make it illegal for schools to provide accommodations to transgender students that recognize their gender identities. It passed passed in the Senate on Tuesday by a 20-15 vote, having passed in the House last month 58-10, which means only a veto from Gov. Dennis Daugaard (R) can keep it from becoming law.
The consequences of this legislation cannot be overstated. It endangers every single school’s funding and budgets, and it endangers the mental health of every transgender kid in the state. Daugaard would be requiring every school district to violate federal law for the sole purpose of marginalizing transgender kids, possibly endangering their well-being to such an extent that they experience massive depression and even consider suicide.
HB 1008, one of several anti-LGBT bills conservative groups have been advancing in South Dakota, requires that every restroom, locker room, and shower room in any public school be “designated for and used only by students of the same biological sex.” The language leaves no room for transgender students, defining biological sex as “the physical condition of being male or female as determined by a person’s chromosomes and anatomy as identified at birth.”
If a student does identify as transgender, their options are limited. The school must provide a “reasonable accommodation,” which cannot “impose an undue hardship on a school district.” Examples the bill provides include “a single-occupancy restroom, a unisex restroom, or the controlled use of a restroom, locker room, or shower room that is designated for use by faculty.”
The Purported Reasons For The Bill
“There’s no problem that this is meant to address,” Mara Keisling explained to ThinkProgress. Keisling serves as executive director of the National Center for Transgender Equality, one of many LGBT groups sounding the alarm and urging Daugaard to veto the bill. “We’re seeing that now with the Seattle nonsense with some groups trying to get men to change in women’s locker rooms. They’re not able to make it a problem.”
Keisling was referring to a similar fight in the state of Washington, where the rules for gender identity nondiscrimination protections that have been law for years were recently issued by the state’s Human Rights Commission. A conservative backlash of anti-trans legislation failed to find any traction there, and activists are now considering a ballot initiative to ban transgender people from restrooms. Perhaps goaded on by many opponents of the protections, a cisgender man insisted last week that he was free to use a women’s locker room because of the protections. As Keisling alluded, the stunt has largely backfired, especially because the man found no protection under the gender identity protections.
HB 1008’s supporters insisted that the legislation was designed to protect children — at the same time calling transgender children “twisted” and “unfortunate.” But contrary to their fears, schools across the country that have had inclusive policies of transgender students for years have never documented any incidents of students’ safety or privacy being at risk.
In other words, nobody actually benefits from this legislation, but it definitely has consequences.
Consequences For Transgender Youth
Brynn Tannehill, a transgender activist and scholar, did not mince words when reacting to the South Dakota legislature’s passage of HB 1008. “Let’s stop calling these bathroom bills,” she wrote. “Let’s stop calling these an anti-transgender bills. Let’s call them what they are: Instruments of cultural genocide.” As brash as that claim might sound, it is actually supported the reality this legislation would create.
The bill would have immediate consequences for transgender youth. GLSEN, an organization that advocates for LGBT students, has long documented how safe students feel in schools across the country. The group’s latest study, collected in 2013, found that 59 percent of transgender students had been forced to use the bathroom or locker room of their legal sex. As a result, almost two thirds of transgender students (63 percent) reported avoiding bathroom facilities altogether, with a majority similarly avoiding locker rooms for the sole reason that they felt unsafe.
Nathan Smith, director of public policy at GLSEN, told ThinkProgress that this can have a severe impact on both the student’s health and ability to learn. “We’ve heard from students who have literally ‘held it’ all day and avoided using the bathroom because they don’t feel safe,” he explained. “If the student has to go to the bathroom, they won’t be able to focus on the lesson, but there’s longer term health consequences that go along with that as well.”
He is highly skeptical that the bill’s “reasonable accommodations” will do much to alleviate that problem. “If you have a student that you only allow to use one restroom in the school and that restroom happens to be on the other side of the school from where that student’s classes are, that student will be consistently late to class and miss the beginnings of lessons.”
Keisling notes that such policies marginalize the students in significant ways. “If a student is suddenly segregated into a separate bathroom, it outs the student,” violating their private medical information. It also targets the student for ostracization. “This is all about alienation and setting students aside. It’s segregation and the impacts of kids being ‘othered’ are well known.”
As an example, she cited the transgender student involved in the highly publicized case against Illinois School District 211. The Department of Education’s memo instructing the school to accommodate the unnamed student outlines how she was ostracized by her peers. For instance, she had to change by herself in a separate restroom for phys ed class, and then sneak into the gymnasium via a circuitous route so that other girls did not notice she had to change separately. On one occasion, she did not hear the announcement that students did not have to change for class, and thus embarrassingly showed up as the only student in her gym uniform. She has also felt excluded from her athletics team because she cannot change in the locker room with her teammates, even though she is allowed to play on the girls’ team.
Another example of this ostracization can be found in the story of Gavin Grimm, who is still fighting in federal court for access to boys’ facilities at his school in Gloucester County, Virginia. He was forced by the district to use single-stall facilities, meaning he had to go to the nurse’s office every time he wanted to use a restroom. “I don’t want to take that walk of shame to the unisex bathroom and know that everyone who saw me go in there knows why I’m in there,” he said last year, adding that he has been branded “it” and “freak” by peers as a result.
GLSEN’s survey found that students who experienced such marginalization were more likely to miss school or drop out entirely, have lower grades, abandon plans to pursue higher education, and experience higher levels of depression and lower levels of self-esteem. A recent study found that LGBT youth who experience high or increasing rates of bullying throughout school face a much higher risk of long-term mental health consequences, including major depression and post-traumatic stress disorder. Major depression is a significant risk factor for suicide. A study of transgender adults found that they experience astronomically high rates of suicide attempts — not because they are transgender, but because of the high rates of discrimination that have deleterious effects on their mental health.
It is for these reasons that a coalition of prominent health organizations issued an open letter Friday calling for Daugaard’s veto. The coalition includes the American Academy of Pediatrics, American Counseling Association, American School Counselor Association, Child Welfare League of America, National Association of School Psychologists, National Association of Social Workers, and the National Education Association. “Appalling” bills like HB 1008, they write, “would compromise the safety and well-being of the young people we all have the duty to and obligation to support and protect.” Further calling the legislation “shameful” and “harmful,” the coalition calls on governors across the country to reject similar bills.
HB 1008 will not directly cause transgender young people to commit suicide, but it will prop up all of the factors that can have a negative impact on their mental health. They will be forced to spend their days in a school where discrimination against them is the law and where their peers can easily identify them as transgender to bully and ostracize them. In this light, Tannehill’s insinuation that South Dakota’s lawmakers would have blood on their hands — along with Daugaard if he signs it — is not an exaggeration in the slightest.
The U.S. Department of Education has issued guidance that makes it clear transgender students are protected by the sex nondiscrimination protections under Title IX. Like the case in Illinois, the Department has worked with several districts to make sure they comply with that law by providing transgender students with access to facilities that match their gender identity. HB 1008 would thus, in no uncertain terms, force all of South Dakota’s schools to violate federal law.
“This law is going to put school districts in a tough position,” Smith said. “The liability falls on schools: Do I follow state law or federal law under Title IX?” GLSEN has urged the Department to issue more specific guidance about how schools should accommodate transgender students, but its position when handling complaints from transgender students at various schools has been clear.
Keisling believes the bill will create all kinds of lawsuits for schools. When students experience all of these negative experiences, “the parents will have to sue. It’s destructive to their children and it’s illegal.” And schools, she says, will not likely be able to afford it.
Lawmakers have tried to gloss over these concerns. Conservative legal groups like the Alliance Defending Freedom and the Liberty Counsel — anti-LGBT organizations that advocated for the bill to be passed — have promised pro bono legal representation if schools are sued. In fact, the original bill required the state attorney general to defend any school that might be sued, but that provision was amended out because of the offer from these legal groups.
“First of all, that’s not binding,” Keisling said. HB 1008 contains no requirement that any lawyer provide any representation to school districts. But furthermore, “that’s only the legal side; it’s not the damages and penalties. That’s not the lost federal funding. They’re not going to pay the penalties, they’re just going to provide the lawyers.” Keisling also pointed out that many school districts will also be required by their insurance carriers to use one of their lawyers rather than a third party.
In other words, the offer of representation in no way spares the school significant expense if students challenge the regulations. If the Department of Education were to withhold federal funding because of noncompliance with Title IX, it would devastate many districts’ budgets.
The Education of Dennis Daugaard
Gov. Daugaard has not yet signed the legislation. He admitted publicly last week that he had actually never knowingly met a transgender person, but said that from his impressions of the archived testimony on the bill, it seemed like a good way to maintain student privacy. He didn’t think it would be a problem to consider signing the bill without having ever met a transgender person.
Despite previously claiming that his schedule was too booked to arrange such a meeting, he said this week that he would agree to meet with transgender students before making his final decision on HB 1008.
Smith thinks it’s an important step for the governor to take. “Being able to put faces and experiences to the issue is hopefully something that will be important in his decision,” he said. He hopes Daugaard develops an understanding of “the difference between sex assigned at birth and gender identity and why gender identity should be the factor when considering what bathrooms students have access to. I hope it’s eye-opening to him.”
Professor Richard Johnson, a social equity scholar at the University of San Francisco who studies LGBT issues, told ThinkProgress that these meetings could provide important context for Daugaard’s decision. “I think oftentimes people who are not in the community have preconceived notions of what it means to be LGBT,” he explained.
“Time and time again statistics show that once people encounter someone who is openly LGBT, their values and perceptions shift.” He added that this is particularly true when parents’ own children come out, so meeting transgender kids could have a particularly big impact as he considers what Johnson called “a legalization of discrimination.”
One South Dakota transgender student is making sure Daugaard hears his story. Speaking to the Associated Press, 18-year-old Thomas Lewis of Sioux Falls shared that the bill “makes me feel like I’m not a human being.” He has launched a Change.org petition calling on the governor to veto HB 1008. He pointed out that the bill declares him a second-class citizen no matter how welcoming his fellow students or school officials might be. “The law means that no matter what people might think at school, how they might accept me at school, the state doesn’t,” he said.
Johnson hopes Daugaard looks at this issue “with an open heart,” particularly given the progress LGBT people have made in the 21st Century. “No politician wants to be on the wrong side of history at this point. I would think that the governor — I would hope — would want to be on the right side of history. I’m hopeful.”
Smith worries that if Daugaard signs the bill, it will be bad for both South Dakota and the country. “It has really significant consequences for safety, affirmation, and well-being for students in South Dakota schools,” he said. “If they want to lead with this precedent, it may well lead to the passage of laws in several other states, and that’s going to be really bad for a lot of students nationwide.”
In South Dakota, the governor must sign or veto legislation within five business days of receiving it from the legislature or it becomes law without his signature.