South Dakota’s House Just Passed an Anti-Trans Bill. It Could Be Coming to Your State Next. (Updated)

South Dakota's HB 1108 is likely to prove a harbinger of things to come for the LGBTQ community in the United States.

[Photo: State Representative Tom Pischke speaks during a floor debate.]
State Representative Tom Pischke (Republican-Dell Rapids), the primary sponsor of House Bill 1108, claimed during debate that schools shouldn’t be “teaching and confusing our young children to be more susceptible to this dysphoria.” South Dakota Public Broadcasting / YouTube

UPDATE, February 22, 3:48 pm.: A South Dakota state senate panel on Friday deferred action on a bill that would have prohibited public school educators from teaching about gender dysphoria until the 41st day of the legislative session; the state legislative sessions are shorter than 41 days. The measure had passed the Republican-controlled house.

“Bad things start here, but they don’t stay here.” That was the warning offered by Libby Skarin, policy director for the ACLU of South Dakota, just minutes after the state’s house of representatives voted in favor of a bill that critics say targets transgender youth.

HB 1108 would prohibit students from being offered “gender dysphoria instruction” in public schools until they reach the eighth grade. According to Skarin, proponents of the legislation likened gender dysphoria to “something you can catch or trick someone into having.”

“There’s so much misinformation—not to mention straight-out lies—about transgender people and who they are,” she told Rewire.News by phone. “It’s one thing to read the news [that] this bad bill passed, but when you’re there and you’re actually listening to the things some of our legislators are saying, it’s so disheartening.”

State Rep. Tom Pischke (R-Dell Rapids), the primary sponsor of HB 1108, claimed during debate that schools shouldn’t be “teaching and confusing our young children to be more susceptible to this dysphoria.”

“I’m 36 years old,” he said. “I’m still confused as to what woman-ness and man-ness is, so I don’t know why we’d be teaching that to someone in the fourth grade.”

But while HB 1108 singles out trans people, Skarin said the proposal is rooted in wider discomfort with the LGBTQ community. During the discussion, Skarin said, Pischke shared a story from a constituent who said her grandson came home from school and told him “It’s OK for boys to kiss sometimes.”

At another point, the bill sponsor read aloud the entire LGBTQQIAAP alphabet—an extended version of the standard LGBTQ acronym. Although cumbersome, it is designed to be inclusive of identities like “asexual,” “intersex,” and “pansexual.” Some versions include a “2” to recognize Native Americans who identify as “two-spirit,” a third gender that is neither male nor female.

As Pischke rattled off the second “Q,” some conservatives snickered and shook their heads in disbelief. Even the orator couldn’t help but smirk.

“It’s very clear what’s really going on here,” Skarin said. “It’s important that we read those signals and not take these bills at face value. They should be treated as a coordinated attack because that is what this is.”

HB 1108 passed the state house on Tuesday in a 39-30 vote.

Fittingly for a state that too often ranks first in discrimination, HB 1108 is actually one of four anti-trans bills introduced in 2019. Two of those proposals—SB 49 and HB 1205—have already been killed.

If it had passed, SB 49 would have voided a South Dakota High School Activities Association policy allowing trans students to compete in school sports in accordance with their sense of self. Meanwhile, HB 1205 would have allowed parents to refuse any form of medical treatment for their child that would “induce or confirm a child’s belief” that they’re transgender.

A final proposal, HB 1225, is patterned after SB 49. It has yet to receive a hearing.

Though the other anti-LGBTQ bills put forward in 2019 have failed or seem destined to fail, LGBTQ advocates are worried about HB 1108 as it heads to the South Dakota Senate.

Even if members of the senate state affairs committee table the legislation, state Sen. Phil Jensen (R-Rapid City) has vowed to force a full debate on it. He could do so through what is known as a “smoke out,” which requires a third of the senate to vote in favor of bringing legislation to the floor. With Republicans controlling 30 of the chamber’s 35 seats, Jensen believes he can make it happen.

Jensen has said he believes newly-elected Gov. Kristi Noem (R) will sign the bill if it passes the senate. Noem has previously said she would sign an anti-trans “bathroom bill” if it came to her desk.’

One of LGBTQ advocates’ chief fears about HB 1108 is that it’s extremely vague. Although the proposal appears similar to “No Promo Homo” laws preventing teachers in states like Alabama from mentioning LGBTQ issues in the classroom, the brief text offers little clarity as to what “gender dysphoria instruction” means. In total, the entire bill is only six lines long.

Skarin said the confusion around HB 1108’s language could lead to a “chilling effect for teachers who have transgender students.”

“My concern is that you’re going to have a teacher or a counselor who has a student who comes to them and says, ‘I think I might be transgender and I’m really struggling,’” she said.“If this bill becomes law, I don’t know what a teacher is supposed to do in that situation.”

Boots Parker, a nonbinary activist and community action liaison for Sioux Falls Pride, told Rewire.News that trans students who lack supportive parents may no longer have any spaces where they feel safe if this bill passes. They described HB 1108 as the rug “being pulled out from under your feet.”

“Who is there that you can reach out to?” they asked. “It’s not like a ten-year-old is going to make a clinical call to a 211 helpline. It puts these kids at increased risk of suicidality, self-destructive behavior, and also hurts their ability to develop appropriate relationships with other individuals.”

Mara Keisling, executive director of the National Center for Transgender Equality, told Rewire.News the South Dakota bill reminded her of the day North Carolina’s infamous bathroom bill, HB 2, passed the legislature in March 2016. She was present in the general assembly as a local high school student named Skye testified before Republican lawmakers. “Every day I go to school and I know I could be bullied by other students,” she recalled him saying. “I know I could be bullied by teachers. Now you’re telling me my senators and my governor are bullying me?”

Keisling said being targeted by lawmakers is “traumatic” for trans students who just want to live their lives in peace.

“All these students are facing that in South Dakota—as are their parents and grandparents,” she told Rewire.News. “These kids are in almost every family and every town. If you look hard enough, you’ll see.”

A “Trial Balloon” for Anti-LGBTQ Hate

Although trans students in South Dakota would be the most directly affected by the passage of HB 1108, the legislation has national implications as a harbinger of things to come for the LGBTQ community in the United States.

South Dakota often serves as a testing ground for anti-LGBTQ legislation.

Almost exactly three years ago, the legislature passed a bill mandating trans students use bathrooms and locker room facilities that correspond with their “biological sex” in schools. It was vetoed by then-Gov. Dennis Daugaard (R), but the following year he approved another law allowing adoption agencies to turn away same-sex couples.

Just days after Daugaard vetoed the anti-trans bathroom bill in 2016, North Carolina forced through HB 2 in a special session of its legislature. When South Dakota passed the license to discriminate bill for religious adoption agencies two years ago, Kansas and Oklahoma followed suit.

The list of reasons that the state is an effective petri dish for conservatives could fill a phone book. For starters, South Dakota operates what’s called a “citizen legislature,” meaning lawmakers don’t have paid staff. Instead of having secretaries to field their calls, the majority of lawmakers have their phone numbers listed online.

That affords lobbyists the kind of access impossible to get in many states. Even ordinary constituents can look up their elected representative and ask them to a cup of coffee.

Should an interested party find the ear of a sympathetic politician, South Dakota requires every bill, even the bad ones, be debated by committee. And even the most outlandish proposal is cheap to push forward. The state’s largest media market, Sioux Falls, ranks number 115 in the nation. That makes it economical for conservatives to buy airtime.

Given that Republicans boast supermajorities in both houses of the South Dakota Legislature, the upside for exploiting these conditions is limitless. According to Skarin, many moderates in the GOP have been primaried out in recent elections, leaving hard-right politicians in charge of which bills get heard and which are killed by committee.

“All those little tick boxes are checked for making it easy to influence things here in South Dakota,” she said. “Everything is lined up in their favor.”

National anti-LGBTQ groups have certainly taken notice. Matt Sharp, senior policy council for Alliance Defending Freedom (ADF), testified before the South Dakota Legislature in February 2016 via teleconference when lawmakers debated a bill discriminating against trans student athletes.

The right-wing legal group, which defended Christian baker Jack Phillips before the U.S. Supreme Court, is widely credited with authoring anti-trans bathroom bills in a dozen states—including South Dakota.

Given ADF’s success in circulating its proposals across the United States, Skarin said HB 1108 is a fight LGBTQ advocates can’t afford to lose. “One thing our opponents are really good at is they have built networks in every single state,” she said. “They are poised and ready to push this through. If South Dakota passes anti-trans legislation, you’re going to start seeing this stuff pop up everywhere.”

But if South Dakota is sometimes described as a “trial balloon” for the rest of the country, it’s one that often bursts before it reaches the sky. Since 2015, advocates—including those with Equality South Dakota—have successfully killed 12 out of 13 discriminatory bills advanced by the state legislature. The only one that passed was the 2017 adoption law.

Travis Letellier, chair of the group’s board, said it’s always the same group of lawmakers who put forward these proposals every year. He believes that shows anti-LGBTQ bills don’t have the wide support their backers believe.

“One of the jokes in the South Dakota legislature is when you see these bad, discriminatory bills, you can pretty much guess the four names who sponsored the bill,” Letellier told Rewire.News over the phone. “The silver lining is that every year they get fewer and fewer cosponsors and fewer and fewer supporters.”

While Letellier calls himself an “optimist,” the numbers show his cheerful outlook is not unfounded. When the bathroom bill passed the state house in 2016, it did so with the support of 58 lawmakers, and just 10 representatives in the lower chambers voted against it.

This time around, the “gender dysphoria” legislation was approved by a comparatively anemic nine-vote margin. Nineteen Republicans voted against it.

These subtly changing tides were apparent in the halls of the capitol building this year. The hearings were packed with LGBTQ people and allies speaking out against discrimination. But aside from a secondhand story from an anonymous constituent, no one testified in favor of the “gender dysphoria” bill—aside from lobbyists.

The most pivotal shifts, however, are taking place behind the scenes. As conservative groups lose some traction in the South Dakota Legislature, advocates say lawmakers have begun returning their calls after years of unanswered voicemails.

“In the past, we couldn’t get legislators to meet with us,” Michael Hanson, vice president of Black Hills Center for Equality, told Rewire.News. “They were so afraid that if somebody saw them having a meeting with an LGBTQ group, they would either be ostracized or punished by their party leadership.”

These closed-door meetings have proven effective. In 2019, LGBTQ-inclusive language was added to a hate crimes bill with over 30 sponsors.

Like many U.S. states, South Dakota finds itself headed in two directions at once: inching toward progress while also taking several leaps back. While support for discrimination has waned as more lawmakers come out for equality, the immovable cadre of conservatives who continue to push hate press on with increasing fervor.

According to Skarin, that passion is dangerous for South Dakota’s most vulnerable. She said trans youth currently find themselves in a “very precarious position” as HB 1108 awaits further debate in the Senate.

“We’re having better conversations with legislators and really moving hearts and minds, but it’s not happening fast enough,” she said. “If we are caught flat-footed on this and if this legislation becomes law here and in other places, that sets back the rights, freedom, and existence of transgender people I don’t know how many years.”