South Dakota’s Anti-Trans “Bathroom Bill” Could Cost the State Millions in Federal Education Funding

The South Dakota state capitol, where the legislature recently passed an anti-trans “bathroom bill.”

Jim Bowen/Flickr

The South Dakota legislature has apparently decided to devote 2016 to a relentless and legally risky assault on trans youth. On Tuesday, the state senate sent an anti-trans “bathroom bill”—legislation that would forbid trans students from using the school bathroom that aligns with their gender identity—to the governor’s desk. The state house has already passed another anti-trans bill that would prohibit high school students from playing on a school sports team consistent with their true gender. A separate house bill, which has already sailed through committee, would require schools (and any “public body of the state or its political subdivisions”) to recognize the gender trans people were assigned at birth rather than their current gender identity.

Some conservative school districts in other parts of the country have already forbidden trans students from using the correct bathroom. South Dakota, though, would be the first state to override every school district and dictate an anti-trans policy for all public schools. The bathroom bill, HB 1008, is especially odd because there have been zero confirmed complaints about trans students somehow invading other students’ privacy by using their preferred bathroom or locker room. On the other hand, 40 percent of trans students nationwide report being bullied, excluded, or harassed by their peers, and 80 percent report a hostile or unsafe school environment.

And yet, the bathroom bill’s legislative advocates insist that the measure is necessary to protect students’ privacy. Republican Sen. David Omdahl even claimed that the bill was necessary to “preserve the innocence of our young people,” and that trans youth are “twisted.” According to the Argus Leader, Omdahl said, “They’re treating the wrong part of the anatomy. They ought to be treating it up here.” He then pointed to his forehead.

There is some hope that Republican Gov. Dennis Daugaard will put a stop to the state legislature’s anti-trans obsession. When HB 1008 first gained steam, Daugaard seemed enthusiastic to sign it into law. But after Daugaard admitted that he had never met a trans person—and didn’t think he needed to before approving the measure—LGBTQ activists seized the moment to slow the bill’s momentum. Daugaard has now agreed to meet with several trans students before he makes his final decision. Daugaard has yet to receive the bill from the legislature; when he does, he will have five business days to decide whether to veto the measure.

If Daugaard is hesitant to veto HB 1008 out of concern for trans youth, he has another excellent reason to quash the bill: It would likely violate federal law. In 2014, the Department of Education held that the sex discrimination ban in Title IX also bars “discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” The Department of Justice agreed, and both agencies have aggressively enforced their interpretation of the law.

South Dakota is free to violate Title IX by enacting HB 1008. But if it does so, it will lose federal funds for its public schools. The state currently receives about $195 million in annual education funding from the federal government, about 15 percent of its total outlay. Losing that money would be catastrophic for South Dakota, and for the many non-trans students whom the legislature purportedly wishes to protect. Perhaps Gov. Daugaard will find it easier to sympathize with trans youth when millions of dollars in crucial funds are on the line.