South Dakota’s anti-trans bathroom bill isn’t dead yet

Mike Phelan’s daughter pretended to have a broken arm because she didn’t know how to explain to other students why she was going to see the nurse multiple times a day. She isn’t out as trans at her South Dakota elementary school, although some teachers and administrators are aware of her gender identity. When she started kindergarten, the school barred her from using the girls’ bathroom, instead forcing her to use a single-stall restroom located in the nurse’s office.

The facility is extremely inconvenient to reach, located on the other side of the school, whereas the girls’ bathroom is directly across the hall. If another student saw his daughter walking in the direction of the nurse’s office, Phelan says she would “hold her left arm in her right hand like it was really hurting her and make a pained face” to avoid uncomfortable questions.

“Every time she went to the bathroom, she told me that her friends asked if she had cancer,” he tells Xtra. “That’s the only reason they could come up with that she would have to go to the nurse so often. They were really worried about her.”

The situation dragged on for more than a year before their school district in Vermillion, a small town of 10,000 near the Iowa border, adopted a trans-inclusive bathroom policy, the first of its kind in the state’s history. After more than three hours of debate, the school board voted 3-2 to allow trans youth to use the restroom in alignment with their lived gender. The new regulations do not cover locker rooms, shower facilities, and overnight trips, as the Sioux City Journal reports.

Phelan says the guidelines dramatically improved his daughter’s life. He recalls that she had stopped eating or drinking at school to avoid using the restroom and would rush home off the bus because she’d been holding it for sometimes hours at a time.

“It was very much sapping any enjoyment out of school when the thing that she worried about was school,” he says of life before the policy’s implementation. “But ever since, she’s happy virtually every day when I pick her up now. She grumbles over math homework like every other kid, but she’s excited to go school in the mornings.”

The Phelans breathed another sigh of relief last week when a bill that would have effectively erased Vermillion’s historic trans inclusion policy was killed in the South Dakota Senate. If signed into law, House Bill 1005 would have forced all students to use the restroom and locker room that aligns with their “immutable, biological sex determined by the person’s genetics and anatomy existing at the time of the person’s birth,” according to its text.

HB 1005 was defeated in the Senate Judiciary Committee on Feb. 8 following a 6-1 vote. Its demise was something of a surprise given that the Tuesday night hearing was scheduled just five days after South Dakota’s governor, Kristi Noem, signed a law banning trans female student athletes from playing on girls’ sports teams in school. 

“The proposal could be revived through an obscure legislative maneuver increasingly invoked by South Dakota Republicans.”

While the bathroom bill’s defeat symbolizes a welcome victory amid yet another record-breaking year for anti-trans legislation across the United States, LGBTQ2S+ advocates caution that HB 1005 isn’t dead yet. The proposal could be revived through an obscure legislative maneuver increasingly invoked by South Dakota Republicans in recent years to push anti-trans bills through the state legislature.

South Dakota is the only U.S. state that permits what is known as a “smoke out,” in which supporters can force a floor vote on any piece of legislation even after it’s killed in committee. To successfully smoke out HB 1005, its supporters would need a third of State Senate representatives to call for a full vote on the legislation.

According to Libby Skarin, campaigns director for the ACLU of South Dakota, supporters have two more days to resurrect HB 1005. Although Skarin cannot comment on the likelihood that the legislation will be smoked out, it certainly isn’t out of the question. The legislation passed by a comfortable margin in the South Dakota House earlier this month, where it was approved by a 38-29 vote. Of the 35 members of the State Senate, all but three are conservatives. 

“One lesson we learned last year is a lot of bills that we felt were dead were smoked out,” Skarin tells Xtra. “You can’t count things out until it’s really, really final. It’s why the day the legislature gavels out for the year is my favourite day of the year because then you go for sure [the bills are] not coming back.”

Should the bathroom bill reach her desk, Noem has signaled that she’s open to signing it. While campaigning for governor in 2018, she voiced support for a law that would “allow boys to be in boys’ bathrooms and girls to be in girls’ bathrooms” while also accommodating “other needs.” After her March 2021 veto of an anti-trans sports ban drew scorn from influential GOP leaders, Noem attempted to save face by pre-filing her own version of the bill just days before the Christmas holiday.

“We’ve been fighting these fights for eight years, and our opponents have been incredibly persistent and dedicated.”

“Thankful to see this bill get support from the legislators and make it to my desk, and that now we will ensure that we have fairness and a level playing field for female athletes here in the state of South Dakota,” she said in a press conference earlier this month while signing her legislation into law. 

Seeing Noem ink the dotted line on a bathroom bill would be a major disappointment for LGBTQ2S+ South Dakotans after years of success in defeating such proposals. Since former Gov. Dennis Daugaard vetoed a 2016 measure that would have banned trans people from any public restroom that aligns with their gender identity, three copycat bills failed to reach the governor’s desk: Senate Bill 115 in 2017, followed by HB 1296 and SB 202 a year later.

“We’ve been fighting these fights for eight years, and our opponents have been incredibly persistent and dedicated,” Skarin says. “For a while, I would go into every session and think, ‘Okay, maybe this year, we won’t see these bills again.’ At this point, I’m not under those illusions anymore.”

As trans kids and their families across South Dakota await the fate of its bathroom bill, many are already reeling from the impact of the anti-trans sports ban. Known as SB 46, the legislation allows cisgender students to bring litigation against their school districts if they suffer “direct or indirect harm” from being forced to compete against a trans athlete in school sports. The law is nearly identical to proposals introduced in states like Iowa, South Carolina, Tennessee and Wisconsin over the past year.

Before SB 46 was signed into law, Megan Koster says her 11-year-old daughter, Olivia, was planning on playing volleyball next year. Olivia began socially transitioning a year ago, and Koster says she’s been widely accepted by her classmates. She’s had a difficult time grasping why her gender identity would be an issue for state lawmakers if it’s not at her school.

“She doesn’t understand why this is happening,” Koster tells Xtra. “It’s hard as a mom. You just want to fix it, and this is something I can’t just fix for her.”

Like other parents in the state, Koster plans to keep raising her voice and fighting back against bills that discriminate against trans youth. What she wants legislators to learn, she says, is that her daughter is just an average middle-schooler. Koster describes Olivia as “sassy” and “outgoing,” a social girl who spends her time at basketball games and sleepovers and is learning how to do her own nails.

Her daughter is no different than any other kid, Koster says the irony is that many of the lawmakers who voted to pass SB 46 may have met Olivia without knowing it. Their family lives in Sioux Falls, the biggest city in one of America’s smallest states by population size. Just over 880,000 people call South Dakota home and approximately 177,000 of them live in Sioux Falls. Many of Koster’s elected representatives are “literally my neighbors,” she declares as incredulity seeps into her voice. 

“One of them lives probably seven blocks away from me,” Koster says. “Olivia has probably walked past their house, and they don’t even realize they’re looking at a transgender youth.”