South Dakota Lawmakers Voted Down Four Anti-Trans Bills—But the Fight Isn't Over Yet

"As long as these bills keep coming up, we're going to keep fighting."

South Dakota’s fourth and final anti-transgender bill put forward in 2019 was squashed not with a whimper, but a tie.

House Bill 1225 was voted down on Monday following an even 34-34 split in the South Dakota House of Representatives. If passed, the legislation would have forced trans student athletes to play on school sports teams that match the gender listed on their birth certificates. Students who do not have a “sexual identity” marked on their birth certificate would have been forced to undergo a physical exam from a health care professional.

Bill sponsor State Rep. Lee Qualm (R-Platte) claimed the proposal is intended to even the playing field in school athletics. During a Thursday hearing in the House Health and Human Services Committee, the conservative lawmaker claimed it’s “unfair for girls to be subjected to competition against boys.”

Sen. Jim Bolin (R-Canton), who sponsored a nearly identical proposal earlier this year, has claimed the measure is in line with policies in other states.

“House Bill 1225 is essentially just going to bring the policy of Texas to the state of South Dakota,” Bolin said of Senate Bill 49, which was killed last month. “It’s not breaking any ground, and it’s designed to bring fair competition to high school athletics.”

But supporters say there have been almost no complaints since the South Dakota High School Activities Association (SDHSAA) began allowing trans student athletes to compete in accordance with their gender identity in 2014. At least 24 states have similar guidelines on the books, including Colorado and Wyoming.

But after HB 1225 escaped committee following an 8-4 vote, South Dakota ACLU Policy Director Libby Skarin claims she was “shocked” the legislation was voted down.

“This has been an incredibly difficult session,” she tells NewNowNext. “Throughout the debate on this bill and on other bills, we’ve really heard some really horrible things said about trans people and trans kids. To finally feel like we're at the end of it and like we’ve survived another session without a piece of anti-trans legislation becoming law feels really good.”

Skarin noted that there was considerable “fatigue” even among supporters of the bill after three previous attempts to discriminate against trans kids were defeated.

In addition to SB 49, House Bill 1108 would have prevented teachers from addressing issues related to “gender dysphoria” until students reach the 8th grade. Often referred to as the “don’t say trans” bill, lawmakers voted on Friday to move consideration of HB 1108 to the 41st day of the legislative session, all but ensuring its demise.

The fourth and final bill, House Bill 1205, would have permitted parents to refuse gender-affirming health care to trans children. The House also punted that proposal to the final day of the session earlier this month.

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Travis Letellier, chair of Equality South Dakota, claims LGBTQ advocates have been extremely successful in lobbying to kill legislation targeting the community. In the past four years, 94% of anti-LGBTQ bills have been defeated. The only one that passed was a 2017 law allowing adoption and foster care agencies to turn away same-sex couples in the name of “sincerely held religious beliefs.”

“No one person or group can or should take credit for the successful defeat of these discriminatory anti-transgender bills,” Letellier tells NewNowNext. “It takes people who are brave enough and advocates who are passionate enough to work together to stand up for progress and fairness.”

But despite Monday’s vote, Skarin warns the fight isn’t over yet. HB 1225 could be revived through an obscure legislative rule called “hog housing.”

“You take the text out of a bill completely and you insert brand new text,” she explains. “As long as there’s one word in the title that matches up with the body of the bill, then that’s okay. You really have to be on guard until the legislature gavels out for the session.”

The anti-trans gag rule could come back to haunt the South Dakota Legislature through similarly outre means. State Sen. Phil Jensen (R-Rapid City), a lead sponsor of HB 1108, has threatened to force a full vote on the legislation even after the Senate State Affairs Committee voted 7-2 to defer action on the bill.

Jensen needs a third of the Senate to back him, and he claims he has the votes. Should he manage to get the HB 1108 to the governor’s desk, first-term Republican Kristi Noem signaled she’d be willing to sign it.

NewNowNext reached out to the State Senator multiple times to see if he plans to go through with a smoke out. Jensen did not respond.

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Facade of South Dakota Capital Building in Pierre, SD at night

While Skarin says a smoke out is “theoretically possible,” she claims it’s improbable. Jensen only has two days left to exercise the nuclear option, and pressing the big red button may not amount to much when even the legislature’s most conservative body—the House of Representatives—wouldn’t back an anti-trans bill.

For instance, before an anti-trans bathroom bill was vetoed by Gov. Dennis Daugaard in 2016, it passed the South Dakota House by a massive 58-10 majority. Its margin in the State Senate was slim, only five votes.

“The fact that this bill died in the House really says a lot,” Skarin says. “I feel pretty confident that this is the end of it for this legislative session, but if there's one thing that we’ve learned, it’s that we can never assume we've defeated these bills for good. As long as these bills keep coming up, we're going to keep fighting.”

But even as the future of 2019’s crop of anti-trans bills remains uncertain, LGBTQ advocates say these tentative victories offer a message of hope in the face of continued challenges. Even though the Republicans boast a supermajority in both houses of the South Dakota legislature and control every single executive office, conservatives can’t seem to pass anti-trans legislation.

LGBTQ advocates just hope their luck continues into next year.

“South Dakotans who stand for equality have worked very hard to quash hate in our state, and we’ve succeeded yet again,” Black Hills Center for Equality VP Michael Hanson tells NewNowNext. “We've been able to send a clear and unmistakable message that hate will not be tolerated, but we have so much more work to do.”