South Dakota could become the first state with legislation requiring students, even those identifying as transgender, to use the bathroom corresponding to their gender at birth.
South Dakota’s bill – passed by the state legislature and awaiting the governor’s signature – is the first to put school bathrooms under law, but it highlights the tense debate over LGBT issues that is playing out around the country, in which both religious conservatives and gay rights advocates fear their rights are eroding.
The bill, which South Dakota Gov. Dennis Daugaard (R) has said sounds like a good idea but he wants to study it before deciding, also requires public schools to find “reasonable accommodation” for students who identify as transgender. This could include a single-occupant restroom or designating a staff facility for use temporarily.
The bill’s sponsor, state Rep. Fred Deutsch (R), said the bill is designed to ensure the privacy of students in the school’s most private areas, and it responds to an opinion voiced by the Department of Justice and the Department of Education under the Obama administration, which overstepped its authority, he told Dana Ferguson for the Argus Leader.
In that case, lawyers for the federal agencies wrote in an amicus brief for a lawsuit involving transgender high school student in Virginia: “Treating a student differently from other students because his birth-assigned sex diverges from his gender identity constitutes differential treatment on the basis of sex under Title IX.”
The political wrangling has inspired appreciation from religious groups and sharp criticism from advocates for lesbian, gay, bisexual, and transgender (LGBT) rights.
"At this point, I'm hoping that the governor has a sense of humanity and the common sense not to write this bill into law," Thomas Lewis, a high school senior who identifies as transgender in Sioux Falls and who plans to attend a university in Minnesota, told the Associated Press. "I am so glad to be leaving soon.”
Legislators of both parties worried it could lead to lawsuits without providing money for schools to fight them.
"We're fixing nothing, but we're creating problems," state Sen. Bernie Hunhoff, (D) told Argus Leader.
Tensions between religious liberties and LGBT rights have become increasingly fraught in the wake of the US Supreme Court ruling legalizing same-sex marriage. Some observers are pointing to Utah as a potential model for compromise and respectful debate. In early 2015, senior leaders from the Church of Jesus Christ of Latter-day Saints lobbied the Utah legislature to pass a law that provided new protections for LGBT people and people of faith to live as they chose.
“There are ways to do this,” Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta told The Christian Science Monitor after a particularly divisive battle over LGBT rights in Houston made national headlines. “You get people of good faith on both sides to sit down and have a conversation, instead of everybody running to say anti this or anti that, and bifurcating the country again. People need to take other people’s concerns seriously, and not immediately label them as either anti-religion or anti-equality.”
This report contains material from the Associated Press.