Education Week - February 24, 2016 - 6

S.D. May Restrict Restroom Use for Transgender Students
Bill at odds with
federal guidelines
South Dakota could become the
first state to restrict the restrooms
and locker rooms that transgender
students use at school, potentially
setting up its public schools for legal
battles with federal officials.
A bill that has cleared both houses
of the legislature would require students to use restrooms and locker
rooms that match their biological sex,
defined as "the physical condition of
being male or female as determined
by a person's chromosomes and
anatomy as identified at birth," even
if that sex doesn't match the gender
they identify with.
The legislation would potentially
put the state's schools at odds with the
U.S. Department of Education's office
for civil rights, which has said schools
are obligated, under Title IX, to honor
transgender students' gender identity.
The South Dakota measure comes as
school administrators nationwide
have been struggling with legal uncertainty about how to accommodate
transgender students.
The bill, HB 1008, passed the state
Senate last week on a 20-15 vote and
House lawmakers approved it in January with a vote of 58-10. A spokesman
for Gov. Dennis Daugaard, a Republican, said last week that Daugaard
would decide whether to sign the bill
after reviewing testimony and discussions from legislative hearings.
State lawmakers around the country have proposed similar measures
in recent years, but none has passed
another legislature.
The bill is one of several proposals
related to transgender students introduced by South Dakota lawmakers
this session. Another would require
public institutions, including schools,
to use the sex printed on a person's
birth certificate to determine his or

Joe Ahlquist/Argus Leader/AP

By Evie Blad

her gender. A third would require the
South Dakota High School Activities
Association, which sets rules for school
sports teams, to seek approval from
state lawmakers before passing policies related to transgender students.

'Reasonable Accommodations'
Proponents of the bill that restricts
the use of locker rooms and restrooms
said it is a necessary response to federal overreach and the advancement
of "an agenda" from Washington related to sex and gender. Some parents
are concerned about the privacy rights
of their children at school, state Sen.
Brock Greenfield, a Republican, said
as he argued in support of the bill on
the Senate floor.
"This only asks us to contemplate
what we feel is appropriate," he said,
"related to our law regarding the commingling of biological sexes in, I guess

I would say, rather intimate settings.
... Do you feel it is appropriate for a
13-year-old girl to be exposed to the
anatomy of a boy, or a 13-year-old boy
exposed to the anatomy of a girl because of decisions we've made here?"
Those who argued against the bill,
including transgender students who
spoke in committee hearings, said it
would unfairly stigmatize and single
out transgender students.
"It makes me feel like I'm not a
human being," said Thomas Lewis, a
transgender student at Lincoln High
School in Sioux Falls. "It makes us feel
like we're all alone in the world and
that the stigma that we face already
is real."
The bill calls for schools to provide
"reasonable accommodations" if a student with parental consent "asserts
that the student's gender is different
from the student's biological sex."
Those accommodations "may include

Thomas Lewis, 18, a transgender
student in Sioux Falls, S.D.,
opposes a bill that would require
transgender students to use
restrooms and locker rooms that
correspond to their sex at birth.

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."
Student advocates and federal officials have said that such accommodations are inadequate and stigmatize
transgender students.
Some Democratic lawmakers said
they fear a tourism boycott from advocacy groups if the bill is signed into
law, not unlike what happened last
year when Indiana lawmakers approved a measure making it easier
for religious conservatives to refuse
services for gay couples.
Groups such as the Gay, Lesbian
and Straight Education Network and
the American Civil Liberties Union
oppose the South Dakota legislation.

Potential Lawsuits

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State senators who argued against
the bill-mostly Democrats-suggested it would open school districts
up to potential lawsuits and put
them on the hook for damages if
those lawsuits were successful. Politically conservative out-of-state law
firms have agreed to represent South
Dakota in potential suits, but those
agreements provide little assurance
to districts that fear repercussions if
the law passes, Democratic lawmakers said.
The U.S. departments of Justice
and Education have asserted in recent years that Title IX-the law
that prohibits sex discrimination in
education programs receiving federal
aid-applies to sexual orientation
and gender identity, in addition to
sex. The federal Education Department's office for civil rights took that
position in an agreement with an Illinois district last year over a trans-

gender girl's access to school locker
rooms.
In response to questions about
South Dakota's bill, a spokesperson
for the federal agency referred to remarks White House Press Secretary
Josh Earnest made last week.
The White House didn't have a legal
analysis of the bill to offer reporters,
Earnest said in response to a reporter's question at a press briefing, but
"the kind of values that this administration has championed have been
values that have been dedicated to inclusiveness and non-discrimination,
and even respect for other human beings. And there are many elements of
this legislation that you've described
that seem to come into sharp conflict
with those basic American values."
The Education Department did
not answer more specific questions
about whether they would intervene
in South Dakota schools if the bill is
signed.
The Education Department's interpretation of Title IX is not legally
binding, and previous legal victories
for transgender students have been
won at the state level. Seventeen
states and the District of Columbia
have more general laws that prohibit
discrimination on the basis of gender
identity. Those states include California, which in 2014 implemented a
law that explicitly lists transgenderstudent protections. Opponents later
tried, and failed, to overturn the law.

Federal Case Pending
A federal judge in Virginia ruled
against Title IX's application to transgender students last year, but the
plaintiff in that case, a transgender
boy, asked for a new judge, claiming
the current judge is biased against
transgender people. An appeal of that
decision is pending before a federal
appellate court.
A group of states filed a brief in
that case, arguing that Title IX does
not apply to gender identity because
the statute doesn't explicitly mention
it. On the other side, the Justice and
Education departments filed a brief in
support of the student.
"Until extraordinarily recently, this
issue was not an issue," said Greenfield, the South Dakota lawmaker.
"This issue has been thrust upon us
in recent years by an activist group of
bureaucrats and politicians in Washington, D.C."
But opponents of the bill said South
Dakota's school districts have succeeded in accommodating students
on a case-by-case basis. State-level
restrictions would rob administrators
of local control, they said.
Others said the bill would do more
harm than good if it is signed into law.
"Maybe this bill was not intended to
be disrespectful, but I would suggest
this: If an entire community says that
we are hurting them, who are we to
say that we aren't?" said state Sen.
Angie Buhl O'Donnell, a Democrat.
"This ultimately tells these kids that
they aren't welcome in this state to be
who they are."
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Education Week - February 24, 2016

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