In 2016, before the passage of North Carolina’s infamous “bathroom bill,” South Dakota was the center of the year’s first fight on transgender issues when lawmakers advanced a bill banning schools from accommodating transgender students. Ultimately, Gov. Dennis Daugaard (R) vetoed that bill, but a new version is back on the table, and there’s a noticeable change.
The 2017 bill, SB 115, has the same purpose as last year’s: blocking schools from letting transgender students from accessing bathrooms and locker rooms that match their gender identity. But there’s a new word included in the bill — one not seen in other anti-transgender bills — that could set a dangerous new precedent for legislation designed to discriminate against transgender people.
“The term, biological sex, as used in this Act, means a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth,” the bill reads. “A person’s original birth certificate may be relied upon as definitive evidence of the person’s biological sex.”
That word “original” means there would be no way for any transgender person to ever obtain legal recognition.
Currently, in South Dakota, transgender people can obtain court orders to amend their birth certificates to reflect their gender identity without any specific medical requirements. Similar processes are available in most other states, though some require individuals to have undergone gender confirmation surgery, an expensive, sterilizing requirement the World Health Organization opposes as an obstacle for legal recognition.
In North Carolina, for example, trans people can obtain new birth certificates reflecting their gender if they have had gender confirmation surgery. North Carolina’s HB2, currently the most discriminatory anti-transgender law on an any state’s books, prohibits trans people from using bathrooms in schools and public buildings based on their birth certificates. While surgery is not a step all transgender people need or even want to take, the wording of North Carolina’s bill grants at least some accommodation for those who do pursue gender confirmation surgery, even if the law discriminates against everyone else.
But if anti-trans legislation starts referring to “original birth certificates” like South Dakota’s new bill does, that would further limit the already-few ways trans people have to protect their gender identities under the law. Indeed, it would eliminate the relevance of any legal documentation they obtain that confirms their gender identity.
South Dakota isn’t the first state to consider this route to denying trans people basic legal recognition. Earlier this month, lawmakers in Indiana blocked a bill from proceeding that would have explicitly banned transgender people from updating their birth certificates. Several states, like Tennessee, already have laws that prevent such changes, regardless of what surgeries individuals undergo.
Given South Dakota’s otherwise-identical bill made it all the way to the governor’s desk last year, this year’s version could similarly have legs. And there’s nothing to stop the many other states considering various anti-trans bills from incorporating the same change or propose new bills with this extra rejection of transgender identities.
UPDATE: Gov. Dennis Daugaard (R) has said this week that if the anti-trans bill lands on his desk, he will again veto it. He noted that it’s fixing a problem that doesn’t exist, but North Carolina’s HB2 has definitely caused it plenty of problems South Dakota doesn’t need.
UPDATE: A week after its introduction, the bill was withdrawn.