Wednesday, February 24, 2016

On Closer Examination, SD's Anti-Transgender Bill Is Even Stupider Than I Thought

     Are we about to bring down a giant legal hassle on ourselves?  I  last focused on the culture war issues involving South Dakota’s legislation (HB 1008)—still awaiting a signature from Governor
The SD Status Quo
Time For Change?
(from tumblr.com)
Daugaard—that would require transgender students in our public schools to use bathrooms and locker rooms that are consistent with their anatomies.  Though the war’s antagonists seem pretty clearly defined in terms of traditional vs. evolving values, the more practical battlefield is likely to be in the courts.  South Dakotans should be wary of what might  transpire. 
     Legislators who crafted the bill that they passed during this session anticipated the potential hassle and expense of defending it by inserting into it two amendments that amount to a couple of giant red flags.  The first amendment clarifies that any anti-discrimination lawsuits against South Dakota schools by federal education authorities will be defended by the state attorney general at the expense of the state.  The second amendment will establish a fund intended to build up money in case such lawsuits materialize. 
    Obviously, the state legislature has been paying attention to the news that similar bills have brought on some litigation in other states, the results of which are still in the resolution phase.  The stakes for South Dakota are high, probably reaching into the millions of dollars.  The U.S. Department of Education, using a law (Title IX) that bans discrimination on the basis of sex, has sued school districts in Virginia and Illinois, saying those districts stand in violation of the law if they do not allow transgender students to use facilities of their identified gender.  "The law could not be any clearer," says Catherine Lhamon, of the Department of Education.  DOE is adamant about applying its mandate "that no student should be subject to discrimination in school on the basis of sex." In the Virginia case, a federal court has upheld the district’s position.  That decision is being appealed by the Departments of Education and Justice, so you can imagine how much time and expense will be allocated to defending the Virginia statute.  The Illinois matter will likely soon be coming to a legal
Well, Duh
We Already Have Stalls For Privacy
(photo from enviroplex.com)
head, as federal authorities last November informed a suburban Chicago school district that it’s in violation of Title IX and will be subjected to the loss of substantial amounts of federal dollars as a result of its transgender policy. 
     For South Dakotans who live in a chronically cash-strapped state that depends on federal money for about half of its state funding, the question is:  Is it really worth it to put this bill into law knowing that we’re effectively anticipating, indeed inviting, a legal challenge mounted by the U.S. Department of Justice? If so, I think we’re not so much governing and managing our state as we are making some sort of in-your-face point about our official attitudes toward gender identity issues.  This is just plain stupid, especially as nobody in this state has shown that transgender access to bath- and locker-rooms has even come up as an issue anywhere in South Dakota.  A much more reasonable approach would be to let the Illinois and Virginia issues play themselves out in court until a definitive resolution is reached. South Dakota then has some basis for making a decision on this. Meantime, this chip-on-the-shoulder legislation that’s intended to send a gratuitous message could cost all of us plenty when it comes to the legal hassles that are sure to come.  The bill needs to be vetoed.

NOTE TO READERS (added @1153 2/25/26):  Cory Heidelberger's correction regarding the changes to this bill that post-dated my writing are in my comments section, but I reproduce them here.  They're a substantive clarification but as Cory notes, they don't change the significance of the potential liability to South Dakotans if federal authorities choose to bring up legal challenges, as they have in Illinois and Virginia.  My thanks to Heidelberger, whose Dakota Free Press remains the best political blog in South Dakota, and among the best anywhere.  I struck through the outdated paragraph.  Here's Cory's notation:  


"Correction: The first amendment to HB 1008, passed in House State Affairs on Jan 25, removed the original language (Section 4) that would have required the Attorney General to represent any schools sued for implemented this new law. The AG said he didn't want that heat. The second amendment, passed in the full House on Jan 27, was a minor language change. Is the legal fund you're talking about in other legislation? Or is that just the current Extraordinary Litigation Fund?

You are correct on the larger point: the Governor should veto this bill to prevent taxpayer liability, which will fall not so much on the state but on local school districts, which have much less capacity than the state to take the hit on lawyer fees and legal damages. Of course, if the feds jump in top of the lawsuits and yank $205 million in education funding over our violation of Title IX, then we're all in deep trouble."

5 comments:

  1. John

    HB 1008 is really not needed and is really a control issue. Did it originate from out of state organization? Probably.

    No one is forcing anything on anyone. As it stands with the High School Association they let the local schools deal with it in making ALL parties comfortable so it is as non-threatening as possible if this situation were to ever arise. If there were objections by a student or parents then that school could deal with it.

    Every situation regarding transgender kids will be different. The intensity for those who may identify as transgender will be different. The dynamics will be different. That is the beauty of the HS association policy rather than a legislative blanket approach.

    There may be a situation where the girls grew up with this young transgender child and they totally accept and protect her. That child will not feel good about their body anyway so it is not about sexual voyeurism or anything.

    Another case could be totally different.

    Regardless that transgender child's parents will have a team to navigate the best approach including a qualified mental health professional experienced in this, teachers, coaches, administrators and possibly clergy to create a safe and as non threatening environment as possible for everyone.

    Reality = smooth transition/fairly non-eventful vs Hype and scare tactics.

    Lynn

    ReplyDelete
    Replies
    1. I agree that this bill is just a gratuitous exercise in statement-making and that we should give schools the benefit of resolving issues as they materialize. For a conservative bunch of pols that they generally claim to be, SD GOP state reps are sure intent on forcing a big government solution on a problem that has yet to materialize. Your point is very well taken, Lynn

      Delete
  2. I really object to the provision to take donations to defend the law. Our state shouldn't be some sort of legal laboratory open to the highest bidder or third party interest groups attempting to buy a state government.

    Nick Nemec

    ReplyDelete
  3. Correction: The first amendment to HB 1008, passed in House State Affairs on Jan 25, removed the original language (Section 4) that would have required the Attorney General to represent any schools sued for implemented this new law. The AG said he didn't want that heat. The second amendment, passed in the full House on Jan 27, was a minor language change. Is the legal fund you're talking about in other legislation? Or is that just the current Extraordinary Litigation Fund?

    You are correct on the larger point: the Governor should veto this bill to prevent taxpayer liability, which will fall not so much on the state but on local school districts, which have much less capacity than the state to take the hit on lawyer fees and legal damages. Of course, if the feds jump in top of the lawsuits and yank $205 million in education funding over our violation of Title IX, then we're all in deep trouble.

    ReplyDelete
    Replies
    1. Thanks, Cory. I'm c & p'ing and posting in the body of my post.

      Delete