S. Dakota is first state to pass bill restricting transgender students’ bathroom use

3 de março de 2016

The
South Dakota state legislature on Tuesday passed a bill that would require
public school students to use the bathroom, shower and locker room that
correspond to their biological sex.

If Gov. Dennis Daugaard
(R) signs the bill, as expected, South Dakota would become the first state to
enact such a law.
The bill has provoked
outrage from gay and transgender rights activists, who say it discriminates
against transgender children. They say that it could put schools at risk of
lawsuits; in 2014, the Education Department issued guidance finding that Title
IX, the federal law that requires equal treatment of the sexes in schools, requires that students be permitted to use facilities
that match their gender identity.
But the bill’s
proponents have argued that the legislation actually matches up better with the
original language of Title IX, which requires separate facilities for the
sexes. They say it respects privacy while also meeting the needs of transgender
students by requiring that schools allow them to use private facilities, such
as a teacher’s or nurse’s bathroom.
The bill, which passed
the state Senate 20 to 15, is just one example of how the debate over gay and
transgender rights has shifted since same-sex couples won the right to marry, state by state at first and then nationally
when the Supreme Court ruled that marriage was a constitutional right for gay
couples.
Opponents of same-sex
marriage have sought to shore up protections for businesses and people who
object to such unions on religious grounds. The most high-profile fight on this
occurred last spring in Indiana, where lawmakers and the governor were forced
to backtrack after the law they crafted was decried as anti-gay.
The
victory on marriage has also thrust into center stage the debate over the
rights of transgender people, who have gained more social acceptance in recent
years but still struggle with discrimination in the workplace and elsewhere.
The issue of transgender
people and bathrooms has flared up recently, particularly after Houston voters
last year repealed an anti-discrimination ordinance that had been
decried as a “bathroom bill.”
The ordinance was designed
to give gays, minorities and others an avenue to fight discrimination in
employment and other arenas. But critics, citing a provision barring
discrimination against transgender people in public accommodations,
successfully argued that the measure would give sexual predators access to
women’s restrooms.
The issue of transgender
people and bathrooms has become particularly charged when it comes to schools.
Across the country, districts have adopted varying policies for allowing
transgender students the use of sex-segregated locker rooms and bathrooms and membership on sports teams.
In several instances,
the policies have led to lawsuits. Earlier this year, the U.S. Court of Appeals
for the 4th Circuit in Richmond heard arguments in the case of Gavin Grimm, a transgender 16-year-old barred
by his school district from using the boys’ bathroom
, which
corresponds with his gender identity. The policy required him to use the girls’
restroom or a private restroom.
A federal judge had previously rejected Grimm’s request for a preliminary injunction that
would have allowed him to use the boys’ restroom. Grimm and his attorneys with
the American Civil Liberties Union appealed the decision.
Dozens
of school districts have grappled with this issue, but South Dakota would be
the first to make it a matter of state law. About
a dozen states are considering similar legislation, according to the Human
Rights Campaign.
“I do think that to some
extent there is a network of people who are anti-LGBT who are feeling
emboldened by the messaging success they enjoyed in Houston and are spreading
that to other places,” said Cathryn Oakley, HRC’s senior legislative counsel.
The bill does not carry any
penalty for students or schools that violate the law. But the true punishment,
Oakley said, is that the schools would probably get snarled in costly legal fights
as courts resolve the conflict in state law and the guidance from President
Obama’s administration on Title IX.
Oakley and
others argue that forcing transgender students to use separate bathroom
facilities is not a reasonable accommodation. They say it can be inconvenient
for a student to venture far away from his or her classes to a designated
bathroom. Moreover, they say, it further stigmatizes the studentsas different from their peers.
But Matt
Sharp, legal counsel for the Alliance Defending Freedom, a Christian legal
organization that advised the South Dakota legislature on the bill that passed
Tuesday, said the attempt to create an accommodation “shows compassion for
transgender students” while protecting the privacy of the rest of the student
body.
Sharp cited the Virginia legal decision and others as evidence
that courts were rejecting the Obama administration’s interpretation of Title
IX. Still, he said, schools and districts are concerned because in extreme
cases the Education Department could revoke an institution’s federal funding.
To ease their worries, the organization has offered to represent
pro bono any district that finds itself in legal trouble over its decision to
abide by the new state law.

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