“Bathroom Bill” Targeting Trans Students Fails in South Dakota

HB 1008 brought national media attention to lawmakers in South Dakota recently. The bill, which mandated that K-12 students use restrooms and locker rooms that matched their “anatomy at birth” or their “chromosomes,” was passed into law, making South Dakota the first state in the nation to write laws specifically targeting transgender youth, and putting the state’s schools at odds with Title IX rulings.

Governor Daugaard was on record as saying he thought the law made good sense and that he had never met a transgender person. He did agree to meet with one student and his mother, as well as one other transgender adult. Once it was sent to his office, Daugaard had five days to veto the bill or do nothing to allow it to become law.

On the fifth day, in a surprising move, Daugaard vetoed the bill. He did not mention discrimination in his official statement, instead relying on fiscal reasoning to discard the bill.

Preserving local control is particularly important because this bill would place every school district in the difficult position of following state law while knowing it openly invites federal litigation.  Although there have been promises by an outside entity to provide legal defense to a school district, this provision is not memorialized in the bill.  Nor would such defense eliminate the need for school or state legal counsel, nor avoid expenses relating to expert witnesses, depositions and travel, or other defense costs.  Nor does the commitment extend to coverage over settlement or damage expenses.  This law will create a certain liability for school districts and the state in an area where no such liability exists today.

The House tried to revise the bill with a vote to overturn the veto two days later. But the override vote failed to meet the two-thirds majority required.