Senate Bill 49…what is it? What does it mean? Why is it necessary? Is this discrimination? These are questions South Dakotans are asking themselves. On Thursday, the Senate Education committee in Pierre will take up SB 49. This bill voids the South Dakota High School Activities Association’s procedure/policy, as it pertains to transgender student athletes.
The current SDHSAA transgender procedure allows kids to compete in a sport or activity in accordance with the gender that they themselves identify with. Senate Bill 49, if passed and signed into law, would take that away, and instead, recognize a student’s gender by what it says on that individual’s birth certificate.
Senator Jim Bolin is a main sponsor of this legislation. One of the questions many have asked him is ‘why is it needed?’ Bolin had a chance to address this at the end of last week, during a press conference at the state capital.
“My background is in sports-education – those types of things. I was athletic director in the Canton school system for eleven-years,” explained Bolin. “Fair competition is extremely important and that’s why I brought this bill forward.”
The current transgender policy of the South Dakota High School Activities Association was implemented in August of 2015.
“We had a high school athletic director, who had an eighth grade student, who was participating in cross country. That student had worked with the school district for many years as a transgender individual,” said Krogstrand. “The question was, what opportunity did we have for this kid to compete in cross country… that was really the genesis of the [transgender policy].”
Fast-forward four years and discussion about the policy is still taking place. While State Senator Bolin is putting a large emphasis on the importance of ‘fair competition’ in high school sports, some don’t interpret the legislation the same way.
Libby Skarin, the policy director for the American Civil Liberties Union of South Dakota, views SB 49 as a way of targeting and discriminating against transgender teens.
“I think in reality what is going to happen is we are going to see transgender kids who are effectively barred from participating in athletics,” said Skarin. “That’s really dangerous, because for transgender kids, being treated in a manor that is consistent with their gender identity is really critical to their short and long-term physical and mental health.”
Another point of discussion surrounding Senate Bill 49 is what it could mean through the eyes of Title IX.
In 2014, the United States Department of Education issued guidelines to protect transgender students from discrimination, under the umbrella that is nationally known as Title IX. However, in 2017, the Trump Administration issued its own set of guidelines to Title IX, which withdrew the guidance put in place by the Obama Administration.
Because of this, State Senator Bolin doesn’t think Senate Bill 49 would create a lawsuit.
“The portion about Title IX opening up a lawsuit, I don’t believe that has any sort of validity,” said Bolin. “During the Obama Administration, Title IX was interpreted in a particular way. That has been rescinded by the Department of Education.”
Skarin with ACLU South Dakota doesn’t believe presidential guidance has anything to do with how the law is viewed in the court system, and that a lawsuit is a very real possibility if Senate Bill 49 is signed into law.
“Guidance is just guidance. It doesn’t change what the actual law says, or change how courts have interpreted that law in the past,” said Skarin. “We know that existing case law in the overwhelming majority of courts that has considered the question on whether Title IX prohibits discrimination against transgender kids. The vast majority of those courts have found that yes, Title IX prohibits sex discrimination in schools and discriminating someone because they are transgender is sex discrimination.”
Similar bills have existed in past South Dakota legislative sessions. In 2016, House Bill 1008, famously known as ‘The Bathroom Bill,” passed through the state legislature, but Governor Dennis Daugaard vetoed it.
The Senate Education committee will discuss State Senator Bolin’s transgender policy bill on Thursday January 24th at 7:45 am CT.