On February 16, 2016 by a 15-20 vote, the South Dakota state senate passed House Bill 1008, which bans transgender students from using school restrooms that correspond with their gender identity. While initially directed toward K-12 public schools, the state’s public post-secondary institutions are also state-funded; if HB1008 is signed by South Dakota’s Governor Dennis Daugaard, campus residential facilities and any other building housing restrooms will likely be affected.

While its signing would designate South Dakota as the first state to pass such a law, under President Obama the Departments of Justice and Education have stated Title IX of the Education Act of 1972 (sex discrimination banned in publicly funded schools) includes transgender discrimination as a form of sex discrimination.

During discussion, Democrat criticism emphasized its passing would permit additional discriminatory bills along with facing a federal lawsuit or withdrawal of funding for the state’s public schools. That a resulting backlash affecting tourism would be damaging to the state, home of the Black Hills, annual Sturgis Motorcycle Rally, and of course Mt. Rushmore, was another concern expressed.

Republican commentary centered on the legislation as responding to the Obama administration’s push for transgender rights in public schools, plus constituent concerns of mixing together individuals of different birth sex as inappropriate and potentially dangerous to females.

HB 1008 states that every restroom, locker room, and shower room located in a public elementary or secondary school that is designated for student use and is accessible by multiple students at the same time shall be designated for and used only by students of the same biological sex. Further, “biological sex” is defined as the physical condition of being male or female as determined by a person’s chromosomes and anatomy as identified at birth.

While the term “transgender” is not included within the Bill, the legislation itself is part of a national movement to ban transgender people from restroom facilities reflecting their gender identity. The slogan, “Men in Women’s Bathrooms” is a rallying cry of sorts, reflecting the unsubstantiated male-as-predator view(and referenced by Republican commentary above), that is uniting America’s conservative organizations in the attempt to pass such policies and thus block or repeal LGBT nondiscrimination laws.

The South Dakota Bill states a “reasonable accommodation” is to be provided for transgender students (likely a single-person restroom), but on the condition that doing so does not burden the school district. Of course, such a facility completely separates trans students and bars them from restrooms reflecting their gender identity.

Governor Daugaard has not indicated whether he will veto or accept the Bill, with his recent press conference commentary of, “I have not met a transgender person that I’m aware of,” a promise of listening to archived testimony on the measure and use arguments from supporters and opponents to make his decision, and declaring the Bill appears to effectively maintain student privacy based on what he has heard, equally elusive.