South Dakota Governor Vetoes Restriction on Transgender Bathroom Access

South Dakota Governor Vetoes Restrictions on Transgender Bathroom Access

By MITCH SMITH
March 1, 2016
NY Times

The Republican governor of South Dakota on Tuesday vetoed a bill that would have restricted bathroom access for transgender students and made the state the first to adopt such a measure.

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Gov. Dennis Daugaard put out a statement late in the day saying that the bill did “not address any pressing issue” facing the state, and that it would have put schools in the “difficult position of following state law while knowing it openly invites federal litigation.”

The measure was pushed by conservative legislators who said it was an effort to protect the privacy of all students. But it appeared to conflict with the Obama administration’s interpretation of federal civil rights law and seemed likely to be headed for a court challenge.

“If and when these rare situations arise, I believe local school officials are best positioned to address them,” Mr. Daugaard wrote in a letter to lawmakers announcing his decision. “Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.” State Representative Fred Deutsch, the Republican who introduced the South Dakota bill, said he would not seek an override. Mr. Deutsch has said he believed that the federal Education Department had overstepped in its interpretation of Title IX, which bans sex discrimination in federally funded education programs, and that students’ biological sex should determine which restroom they use. Mr. Deutsch said he had spoken with Mr. Daugaard shortly before the veto statement was released.

“It was an honest, sincere effort to protect the bodily privacy of our children,” said Mr. Deutsch. He said he had sought to provide accommodations for transgender youth in the legislation.

But opponents of the measure had argued that it would have created a stigma for transgender students and made them stand out in a way that would be uncomfortable.

“Now the state also realizes that I’m a human being, too,” said Thomas Lewis, a high school senior in Sioux Falls who is transgender and spoke against the bill. “Now there’s less fear for trans people to come out because no one’s going to prevent them from using the bathroom” they prefer.

Transgender issues have emerged nationwide amid the increased visibility of transgender people, and in the wake of the legalization of same-sex marriage nationwide and civil rights protections for gays in many states. But access to bathrooms and locker rooms has repeatedly been a sticking point.

The Obama administration has held that Title IX includes protections for transgender youths, and the Education Department has threatened legal action against districts in Illinois and California that tried to restrict restroom or locker room use.

Those who favor bathroom restrictions often cite safety and privacy. In Missouri, high school students protested last year when a transgender girl sought access to the girls’ bathroom and locker room. And last fall in Houston, a city ordinance that extended discrimination protections to transgender people was repealed by voters after opponents used the slogan “No Men in Women’s Bathrooms.”

The bill was supported by the Heritage Foundation, the Washington-based conservative research group, and the Roman Catholic bishops of South Dakota.

Opponents of the bill rallied outside the Capitol in Pierre and on social media after its passage last month. Caitlyn Jenner and Laverne Cox were among the prominent transgender people who urged Mr. Daugaard to veto the bill, and some on Twitter threatened a tourism boycott in the state if it became law. After the veto, transgender rights advocates praised Mr. Daugaard.

“Governor Daugaard chose to do the right thing and veto this outrageous legislation attacking transgender kids,” said Chad Griffin, the president of the Human Rights Campaign, in a statement. “Today, the voices of fairness and equality prevailed, and these students’ rights and dignity prevailed against overwhelming odds and vicious opponents in the state legislature.”

Mr. Daugaard, a second-term governor who grew up on a South Dakota dairy farm, met with Mr. Deutsch and, separately, with transgender advocates before deciding on the bill. When the legislation was being considered, local news media quoted him as saying he was not aware of having met a transgender person. But after his meeting with Mr. Lewis and the others last week, Mr. Daugaard said he was able to hear “their personal stories, and so I saw things through their eyes in that sense.”

Governor Daugaard, who previously served in the State Legislature and as lieutenant governor, will not be eligible to run for re-election in 2018 because of term limits.

Even as transgender advocates celebrated his veto, some worried about other legislation in South Dakota and beyond. A bill that would restrict transgender students’ participation in high school sports passed the South Dakota House last month and is pending before the Senate.

Mr. Deutsch said Tuesday that he needed time to think about whether he would introduce a version of his bill again next year, but said, “I’ve talked to legislators from many states who want to do something similar to this.”

Some opponents had expected Mr. Daugaard to sign the bill, which had broad but not unanimous support from his fellow Republicans in the Legislature.

Heather Smith, executive director of the American Civil Liberties Union of South Dakota, which had opposed the bill, said the veto was “definitely welcome.”

“I think this is a very powerful statement for South Dakota students that their governor respects them and wants them to feel safe in school,” she said.