We said it over and over again during the 2023 South Dakota legislative session: When it comes to gender-affirming care for minors, decisions belong to patients, their parents, and their doctors – not politicians. It is unconstitutional to single out one group of people and categorically ban all care.
Some of our elected officials disagreed. House Bill 1080, legislation that prohibits doctors from providing life-saving gender-affirming health care to trans youth in South Dakota, passed and was signed into law.
But in June, a federal judge in the 8th Circuit Court – the same jurisdiction South Dakota falls under – permanently blocked an Arkansas law that aimed to ban gender-affirming care for transgender youth. The judge said the law, which is similar to South Dakota's, violates the rights of transgender youth under the Equal Protection Clause, their parents under the Due Process Clause, and the First Amendment rights of their medical providers.
The critical victory comes as judges are blocking similar bills passed in other states, finding legal challenges against them likely to succeed on the merits. Courts in Indiana, Alabama, and Florida have blocked bans in those states, finding them openly discriminatory, unconstitutional, and dangerous to the very youth they claim to protect. That’s because, as one federal judge noted, states have “failed to present [any] evidence that the” banned gender-affirming care procedures “jeopardize the physical or psychological well-being of a minor with gender dysphoria.”
These decisions send a clear message: Laws like this, when tested by evidence, are indefensible under any standard of constitutional review.
Here at the ACLU of South Dakota, we are actively monitoring this issue and analyzing the best way to bring an effective challenge to South Dakota’s ban. Our goal is to ensure that if or when the ACLU of South Dakota files a lawsuit, we can do so victoriously for all trans families and for all South Dakotans concerned about government overreach, safety of our children, and erosion of our constitutional rights. If you’ve been affected by this law, we want to hear from you.
Costly litigation or other legal action, however, isn’t the only answer. The defense of our liberties can’t rely on the courts alone – politics and public opinion matter, too.
That’s why we’re encouraging South Dakotans to pressure their lawmakers to repeal House Bill 1080. It’s not too late for the same legislators who supported this bill to change their positions and use their power to undo the harm the new law will inevitably cause for trans South Dakotans. Your legislators, after all, are elected to represent South Dakotans, not contribute to a national campaign against transgender people – or waste our tax dollars on another expensive lawsuit.
It's hard to believe that any legislator who voted to pass House Bill 1080 would want someone who is a complete stranger, who doesn’t know their child or their medical recommendations, to make life-altering decisions for their family. All parents can relate to the absurdity and injustice of a law that operates in this manner. If we truly care about the well-being of South Dakota’s children, this isn’t it.
Hate isn’t healthy.
Transgender youth in South Dakota should have access to the medical care they need with no exceptions. Parents of trans youth have the right to determine the best care and keeping for their children. The ACLU of South Dakota will continue to do all that we can to fight for the rights and well-being of trans South Dakotans in the face of government-sanctioned discrimination.
When trans rights are under attack, we show up – whether that’s in the courts or the legislature. We hope you will, too.
A version of this column also appeared in The South Dakota Standard.