Roosevelt Institute | Cornell University

Legislating the Lavatory: Unpacking South Dakota's Bathroom Bill

By Taylor KeatingPublished February 25, 2016

South Dakota lawmakers are sacrificing the rights of transgender students in an attempt to protect the privacy rights of others. The "Bathroom Bill" puts transgender students at emotional and physical risk by imposing discriminatory restrictions on gender identity.

    As the state with the 6th smallest population, South Dakota is not known for leading the nation in groundbreaking policy. Unfortunately, the state did gain national attention in February of 2016 when both the state Senate and House approved a bill that severely restricts the rights of transgender students in South Dakota. The bill now awaits Governor Daugaard's signature, and if signed, will become the first statewide legislation to ban transgender students from certain restrooms and locker areas. Referred to as the "bathroom bill," HB 1008 forces students to use the restrooms according with their biological sex, or sex as determined at birth, rather than the gender they identify with. South Dakota legislators artfully avoided accusations of Title IX violations by providing "reasonable accommodation" to students with a written note from a parent or guardian in which the adult verifies that the student does not identify as their biological sex. These accommodations would not allow the student to use the restroom of their choosing; rather, the school would provide either a single-occupancy or unisex restroom or require the student to use a restroom designated for faculty. While the law makes no mention of the wellbeing of transgender students, it does explicitly state that the reasonable accommodation will not "impose undue hardship on a school district."

    While the South Dakota legislature welcomed advisement on the bill from religious groups, such as the Alliance Defending Freedom, it is hard to believe that any input from a transgender individual or advocacy group was seriously considered in the passage or creation of this bill. Speaking on behalf of South Dakota Citizens for Liberty, Florence Thompson testified in support of the bill, claiming, "It allows for the sensitive accommodation of students who are experiencing personal trials, and it does so without giving preferential treatment to a tiny segment of the student population at the expense of the privacy rights of the vast majority." Matt Sharp of the Alliance Defending Freedom expressed similar thoughts to Thompson's, claiming the reasonable accommodation included in the legislation "shows compassion for transgender students" without sacrificing the privacy of the student body.

    The portrayal of this bill as sensitive or accommodating demonstrates ignorance on the realities faced by transgender youth. Furthermore, disguising the reasonable accommodation as "compassion," rather than a strategy to avoid a lawsuit, is laughable. The accommodation is only provided if the student is able to produce the note, which already creates barriers for many transgender students who have not had such conversations with their parents or who are not accepted by their families. Assuming students are able to procure such a note, they are then forced to single themselves out from their classmates each time they need to use a bathroom or locker room. Primary schools have not been known for welcoming LGBT students, and a national study done by the Gay, Lesbian, & Straight Education Network found that 75% of transgender youth do not feel safe at school. Transgender youth have significantly lower GPAs and are less likely to continue their education than their peers. In addition to the bullying that these students likely face from other students at school, they are now being told by adult legislators and community members that the expression of their gender is a violation of the rights of others. The bill seems to prioritize diminishing the rights of transgender students over protecting those of the "vast majority."

    Had this piece of legislation been put forth a few decades ago, it likely would not have received the same national attention that it has. The past few years have seen a substantial increase in transgender visibility, with trans people gaining more attention in the media and in the political sphere. In 2013, California passed what may now be appropriately referred to as the "anti-bathroom bill": AB 1266 prohibits public schools from discriminating against students on the basis of gender identity and gender expression, thereby allowing students to use the restroom that corresponds with their preferred gender. While there is a lack of conclusive data surrounding the impact of AB 1266 in California public schools, it is clear that California has not devolved into a massive nudist colony as a result of this law.

    The fact that California's AB 1266 and South Dakota's HB 1008 could exist simultaneously may seem counterintuitive, but these bills provide a perfect example of our current political environment. Bernie Sanders and Donald Trump are concurrently gaining popularity in the 2016 presidential election campaign, indicating a severe lack of consensus by the American public on policy issues. However, as the charade of the campaign continues, we should not allow the rights of transgender individuals to be swept up in our politicians', or our own, inability to compromise. 31 states do not consider sexual orientation or gender identity to be "protected characteristics," or criteria shielded from discrimination under law. This means that the basic rights of LGBT people, from housing to job protection to use of a restroom, can and will continue to be viciously attacked by legislators. The fight against HB 1008 should not be a repeal act; it should be a push for federal discrimination law to encompass sexual orientation and gender identity as protected characteristics.