By: Libby Skarin, Policy Director & Lobbyist, ACLU SD

A glance at my calendar as I write this tells me that today is March 31. That date is cause for much celebration around the ACLU of South Dakota office because it means that we have officially made it to the other side of the 2016 legislative session! This year's 38 day session was a whirlwind so take a deep breath, grab yourself a cup of coffee, and let's recap!

From lobbying, bill monitoring, testifying, analyzing, and beyond, ACLU-SD worked on nearly 40 bills this session. Those ranged from drug testing welfare recipients to accommodations for pregnant workers (and everything in between). Though our work in 2016 was a civil liberties smorgasbord, three issues in particular stood out: reproductive rights, criminal justice for juveniles, and LGBT rights. 

There's so much to say about these three issues, I've decided to break these legislative recaps up into a three part series. Today we'll start with our most dramatic issue of the session: LGBT rights. Next week I'll delve into the substantial attacks on reproductive rights we saw in Pierre. Finally, I'll conclude with our victory on the passage of SB 140, a bill that ended life in prison without the possibility of parole for juvenile offenders.

One of the most dramatic and well documented issues from the 2016 session was definitely LGBT rights. This year, a group of legislators launched an unprecedented attack on the LGBT community, with a particularly cruel emphasis on singling out transgender South Dakotans. Here's a rundown of the bills we saw this year:

• HB 1107 was a bill that would have legalized discrimination against same sex couples, transgender people, and anyone who has had "sexual relations" outside of marriage. This bill shared many similarities with a bill that passed in Georgia (but was vetoed by the Governor) as well as one introduced in Mississippi. This bill made it through the House but was tabled by the prime sponsor in a Senate hearing.
• HB 1112 was a repeat attempt of a bill we saw in the 2015 session. Like last year's bill, HB 1112 would have banned transgender high school students from participating in school athletics. This bill passed out of the House but failed to garner enough votes to be passed in front of a Senate committee.
• HB 1209 was a bill that would have forced government entities to interpret birth certificates in a way that would have erased the identities of transgender South Dakotans. Though the intent behind the bill was to target the transgender community, the problems didn't stop there. The bill also would have created legal problems for anyone who legally changes their name but does not amend their birth certificate as well which would have put a burden on many people, including those who change their names through marriage. This bill passed through a House committee but was tabled by the prime sponsor in front of the full House.
• HB 1008 was, of all the anti-LGBT bills, probably the one you've heard the most about. Dubbed the "transgender bathroom bill," this piece of legislation would have singled out transgender students in public schools by forcing them to use isolated restrooms or those that don't match their gender identity. In addition to being unnecessary, this bill would have forced schools to violate federal law - including the protections under Title IX - and could have resulted in the loss of millions of dollars in federal funding. The fight against this bill ran down the clock to the very last minute. The bill was sent to Governor Daugaard where it met its fate: a veto. In his veto message, the Governor emphasized what we'd been saying all along, and stated that the bill "removes the ability of local school districts to determine the most appropriate accommodations for their individual students and replaces that flexibility with a state mandate . . . . [t]his law will create a certain liability for school districts and the state in an area where no such liability exists today."

With a lot of hard work, we successfully stopped each and every attempt to discriminate against the LGBT community this year. We pulled this off with the help of communities across South Dakota, students, teachers, parents, business leaders, our friends at national organizations and most importantly, some truly brave transgender South Dakotans who stood up to make themselves heard.

By James Esseks, Director, LGBT & HIV Project

A federal appeals court weighed in yesterday in the nation’s ongoing conversation about restrooms and transgender people, ruling squarely in favor of transgender people and equality. 

Gavin Grimm is a junior in high school in Gloucester, Virginia. He’s a boy, but because he’s also transgender, his school told him he couldn’t use the boy’s restroom at school, but would have to use the girl’s room or single-user restrooms. Gavin didn’t think it was right for him to be treated differently than all the other boys at his school, so (with the ACLU’s help) he challenged the district’s rule as discriminatory. 

Yesterday, the United States Court of Appeals for the Fourth Circuit agreed with Gavin. It held that schools that bar students from using gender identity-appropriate restrooms discriminate based on sex in violation of Title IX, a federal law against sex discrimination in education. The court sent the case back to the trial judge for further proceedings. 

The ruling is a big deal on many levels. It’s the first federal appeals court ruling on the issue and backs up the interpretation of Title IX from the federal Education Department, which has been a true leader on this issue. 

The decision applies directly to North Carolina and South Carolina, not just Virginia. That means that the requirement in North Carolina’s recently enacted law, that schools and government buildings force transgender people into the wrong restrooms, is now clearly unlawful sex discrimination that violates federal law. And it should send a strong message to South Carolina, where another anti-transgender bill is being considered, that it’s time to put these harmful measures to bed for good.

Perhaps most importantly, the ruling should mean that Gavin himself — and so many other transgender people all across the Fourth Circuit and all across the country —  should no longer have to be humiliated by having his very identity disrespected and undermined day after day when he — like all of us — has to use the restroom. 

We still, though, have some work to do to help educate America about who transgender people are and why the bathroom predator myth is just the extreme right’s most recent strategy for curbing LGBT equality. It’s their last ditch effort after they lost the marriage fight. The good news is that the public is catching on. The more people learn that Gavin is in fact just a boy who needs to use the bathroom like his peers, the more these bills will die quietly.

This good news follows another win for transgender students this week. Two days ago, the Tennessee state legislature lay to rest a bill that would have forced transgender students to use the wrong restroom. Pressure from LGBT advocacy groups like the ACLU and leadership from transgender students on the ground in Tennessee helped to put the nail in the coffin of that harmful measure (at least for this year). Unfortunately, there is another bill in Tennessee that already passed and is awaiting the governor’s veto or signature in the coming days. The bill would allow therapists to turn gay and transgender patients away with claims that treating them would violate their religious beliefs. A similar but perhaps even more threatening measure in Missouri would enshrine in the state’s constitution the right to discriminate against same-sex couples and turn them away from wedding services in the name of religion. These states should look to the economic fallout in Mississippi and North Carolina as a warning about what could happen if they ram these bills through.

All in all, it’s been a roller coaster of a ride for LGBT rights recently. We’ve seen some big wins and big losses these past few weeks, and we’re likely to see yet more in the weeks to come. What we know for sure is that the moral arc does indeed bend towards justice, and we will continue to fight with all our might until we’ve achieved full equality. 

Gov. Daugaard's Veto Protects the Health and Safety of Transgender Students in South Dakota

PIERRE, S.D. South Dakota Gov. Dennis Daugaard today vetoed the nation's first discriminatory anti-transgender bathroom bill to pass a state legislature.

The measure became the subject of national scrutiny for proposing to single out South Dakota transgender students by forcing them to choose between isolated accommodations and those that do not match their gender identity.

"Today Governor Daugaard made a symbolic statement that South Dakota's transgender students are a valued part of the community and that our state leaders won't be swayed by out-of-state groups that don't have the interests of South Dakotans at heart," said Heather Smith, executive director of the ACLU of South Dakota. "People from across the state and country took time to reach out to the governor to urge this veto that's the true testament of democracy. There was no place for discrimination in South Dakota when this bill was initially proposed by a handful of legislators, and today the governor confirmed unequivocally that discrimination has no place in our future. Thank you governor, for listening to the collective voices of South Dakotans and voting your values."

The veto protects the health and safety of transgender South Dakota students and ensures that state law complies with federal law prohibiting discrimination in schools on the basis of sex. The veto comes as 16 other states are considering similar discriminatory measures that expose transgender students to unequal treatment.

"Governor Daugaard's decision will place him unequivocally on the right side of history," said Chase Strangio, staff attorney with the ACLU's Lesbian, Gay, Bisexual and Transgender Project. "Federal law is clear that transgender students are protected under Title IX and the governor's veto prevents costly investigations into school districts across South Dakota. Hopefully this important action by Governor Daugaard will allow the state and other states across the country to continue to invest in the safety of all students instead of singling out a vulnerable few for isolation and discrimination."

Transgender student Thomas Lewis rallied against the bill by starting a petition that garnered more than 83,000 signatures and organizing a delivery to the state capitol. Gov. Daurgaard invited Thomas and a group of other transgender students for a meeting to discuss their concerns about the harms of the bill, HB 1008. He celebrates today's victory.

"In my meeting with Governor Daugaard, I could tell that he was genuinely interested and concerned with my story, and I believe this openness helped him make this decision to veto HB 1008," said Thomas. "The governor made it clear today that transgender people like me are worthy of respect and kindness. I join thousands of people across the state in thanking Governor Daugaard for standing up for all South Dakotans."