South Dakota legislature sends landmark transgender-bathroom bill to governor

A bill approved Tuesday would make South Dakota the first state to enact a proactive ban on opposite-sex restroom and shower access in public schools, touching off the latest skirmish on transgender bathroom use.

Republican Gov. Dennis Daugaard has responded positively to the idea but has also said he will study the legislation before deciding whether to sign it.

Approved on Tuesday by the Senate on a 20-15 vote, the Student Physical Privacy Act would require public-school students to use the facilities that correspond to their biological sex.

Those uncomfortable with doing so would be able to seek a “reasonable accommodation,” such as a unisex, one-stall bathroom.

“We’re talking about our youths commingling in bathrooms and locker rooms, biological males and biological females,” said Republican state Sen. Brock Greenfield during Tuesday’s floor debate, according to the Argus Leader.

“Do you feel it appropriate for a 13-year-old girl to be exposed to the anatomy of a boy? Or for a boy to be exposed to the anatomy of a girl because of the decisions we make out here?” he asked.

But the Human Rights Campaign and the ACLU of South Dakota are calling on the governor to veto the legislation, calling it “extreme and dangerous” and saying it would create a separate-but-equal situation for transgender youth.

“Today South Dakota Senators voted to pass a bill that targets vulnerable transgender students for discrimination,” Heather Smith, executive director of the South Dakota ACLU, said in a statement.

The legislation was spurred in part by the Obama administration, which has indicated that prohibiting students from accessing restrooms and locker rooms that match their gender identity (rather than their biological sex) violates the federal Title IX anti-discrimination law.

Foes of the legislation have argued that it puts school districts at risk for lawsuits, but supporters say those districts are already vulnerable to legal action from students who would otherwise be required to share restroom facilities or showers with a member of the opposite sex.