For Thomas Lewis, a high school senior who plays trumpet in the marching band and works evenings at a grocery store, South Dakota’s contentious debate over transgender rights is personal.
Lewis, 18, who came out as transgender last year, has been speaking out against a bill that would prohibit public school students from using a bathroom or locker room for a sex other than theirs at birth. If the bill is signed by Gov. Dennis Daugaard, a Republican, by Tuesday, it will make South Dakota the first state to impose such a law.
Proponents of the legislation say it would help protect children and ensure everyone’s privacy, but its passage has inserted South Dakota into the center of a national debate about transgender rights and access to restrooms and locker rooms.
It is among a number of bills addressing the rights of transgender people that are being pushed by conservative legislators in this state and others. Another South Dakota bill, which was shelved this week, would have required public agencies to accept only information on birth certificates, effectively preventing legal recognition of sex changes.
Lewis said the bathroom legislation, which was passed by the South Dakota Legislature last week, “creates more stigma,” increases the risk of bullying and sends a message to transgender students: “You’re so different, in a bad way, that you need your own bathroom, your own locker room, your own shower situation.”
State Rep. Fred Deutsch, the Republican who introduced the bill, said it was intended “to protect the innocence of children.”
“How do we protect their minds and hearts and eyes while they’re showering and changing?” said Deutsch, a former school board member from northeastern South Dakota.
In Houston, voters repealed an anti-discrimination ordinance last year that included transgender people after opponents seized on the message “No Men in Women’s Bathrooms.” In Missouri, high school students protested last year when a transgender girl requested to use the girls’ locker room and restroom.
Individual school districts in places like California and Illinois have adopted rules barring transgender students from restrooms that correspond with their gender identity. Federal officials have intervened and threatened to cut off Title IX funds to districts that do not allow transgender students to use their preferred bathrooms and changing areas, though some conservatives have questioned the government’s interpretation of that rule.
The South Dakota legislation would seem to put the state in conflict with the Obama administration’s interpretation of the federal Title IX law, which prohibits discrimination on the basis of sex in any education program or activity that receives federal funds. Lewis said last week that he would probably continue to use the men’s restroom at school even if Daugaard signed the bill. Even supporters of the legislation acknowledge that a school district will most likely be sued if it becomes law.
“This bill would put schools in a very difficult situation, where they have to decide whether they want to comply with federal law or they’re going to follow what their state is mandating,” said Heather Smith, executive director of the American Civil Liberties Union of South Dakota, which opposes the bill.
Deutsch, the bill’s sponsor, said he was unaware of major disputes over transgender bathroom access in his state and acknowledged that the bill was “entirely preventative.” But he suggested that not enacting it could also lead to lawsuits, and that “in a small, rural state like this, there’d be an outrage from students” if a transgender youth were given full access to showering and changing facilities.
The bill has support from the Heritage Foundation, the Washington-based conservative research group, and the Roman Catholic bishops of South Dakota.
“The teaching of the Catholic Church is clear: One’s gender, male or female, is determined by God and not a matter of personal choice,” the bishops said in a statement last month. They added that the bill would respect “the innate dignity of all persons in our schools.”
Deutsch said he felt “terrible that transgender children feel under siege,” and noted that his bill would allow transgender students to request a separate accommodation if they did not want to use the bathroom corresponding with their sex at birth.
Lewis said the onus was on others to accept his identity as a man rather than on him to conform to their expectations, and noted that locked stall doors already ensured a layer of privacy. “Bathrooms don’t need to change,” he said. “People do.”
In Watertown, high school students gathered more than 200 signatures for a petition saying the bathroom bill was discriminatory and should be voted down. And on the Rosebud Indian Reservation, where State Sen. Troy Heinert once taught elementary school, Heinert said a transgender girl had attended classes years ago without any issue.
“Parents said, ‘He dresses as a girl, he lives as a girl, he plays with girls,’” recalled Heinert, a Democrat who voted against the bill. “We made some accommodations at our school. Nobody cared. Everybody knew. We didn’t make a mountain out of a molehill.”
In neighboring Iowa, a bill that advanced recently would extend hate crime protections to transgender people. And in Minnesota, anti-discrimination protections were extended to transgender people more than 20 years ago.
South Dakota’s bill has attracted the attention of transgender advocates nationally, some of whom have posted criticism of the bill and threats of a tourism boycott on social media with the hashtag “#HiFromSD,” which was previously used to promote visiting the state.
Sarah Warbelow, legal director at the Human Rights Campaign, which promotes the rights of lesbian, gay, bisexual and transgender people, said bills like this were in part a backlash against victories for rights advocates on issues like same-sex marriage.
“For a very long time, many people accepted that they just had a right to discriminate against transgender people,” Warbelow said. “This is a reaction to enforcement. It’s also a reflection of better understanding that trans people exist.”
Indeed, Daugaard, whose office said he had not decided whether to sign the bill, was quoted recently in the local news media as saying he was not aware of having met a transgender person. After reading that comment, Kendra Heathscott, a transgender woman from Sioux Falls, wrote in a letter to the state’s largest newspaper, The Argus Leader, that she had known the governor as a child. Heathscott recalled Daugaard as a kind, accepting man and urged him to veto the bill.
Daugaard met with transgender rights advocates, including Lewis and Heathscott, on Tuesday. He later told The Associated Press that meeting with them “helped me see things through their eyes.”
Lewis said that Daugaard had been “listening and asking us questions,” though he said the governor had not indicated what he would do with the bill. It reached the governor’s desk on Tuesday, a spokeswoman said, and he must act within five business days.