A fierce debate is playing out in state capitals throughout the country over which bathrooms and locker rooms transgender students in public schools should use.
South Dakota Gov. Dennis Daugaard faces a deadline Tuesday to act on a bill passed by the state legislature that would require students to use bathrooms or locker rooms for the gender that corresponds with their “chromosomes and anatomy” at birth.
If Daugaard, a Republican, doesn’t sign or veto the bill by that date, it automatically goes into effect and become the first-of-its kind law in the country. He hasn’t disclosed the decision he will make.
In all, more than two dozen similar bills have been filed in state legislatures across the country in the first two months of 2016, according to the American Civil Liberties Union.
“This is the new frontier in the battle over LGBT rights,” said Paul Brewer, a political scientist at the University of Delaware who studies public opinion on LGBT issues.
In addition to South Dakota, “bathroom law” fights have been launched in Illinois, Indiana, Kentucky, Mississippi, Missouri, Oklahoma, Tennessee, Virginia, Washington and Wisconsin.
In Oklahoma, legislators introduced a bill that withholds state aid if a parent files a merited complaint that a school district has allowed a student to use a sex-segregated bathroom or changing facility that doesn’t align with the student’s gender at birth.
A proposal introduced last month in Virginia would require local school boards to develop policies that require restrooms and locker rooms to be used only by “individuals whose anatomical sex matches” the gender designation of the facilities. Students violating the policy could face fines up to $50.
In Washington state, a Senate committee approved a bill last month that would reverse the state’s 2-month-old policy that allows transgender people to use bathrooms and locker rooms in public buildings that are consistent with their gender identity.
“What this amounts to is legislators saying we didn’t win the gay marriage fight, so let’s go after someone else,” said Ashley Joubert-Gaddis, director of operations at The Center for Equality, a Sioux Falls, S.D., advocacy group lobbying Daugaard to veto the proposed bathroom law.
Polling shows Americans overwhelmingly back laws providing transgender people protections from discrimination in schools and the workplace, but the country is more divided when questioned about the issue of access to bathrooms and locker rooms.
Americans narrowly oppose allowing transgender people to use bathrooms and locker rooms different than the gender they were assigned at birth by a 38% to 37% margin, according to a YouGov/Huffington Post poll published last summer. About 25% of respondents said they were uncertain about the issue.
The issue has been put into sharp focus after a series of high-profile battles at the local level.
In Houston, conservative groups last year waged a successful effort to repeal an anti-discrimination ordinance passed by the city council that prohibited discrimination based on race, age, sexual orientation and gender identity. Opponents to the ordinance launched an advertising campaign that argued the policy would lead to male predators preying on women in bathrooms.
A suburban Chicago school district agreed in December to accommodate a transgender student who wanted to use the girls locker room after the district was threatened of being stripped of funding on the grounds it was violating Title IX, a federal law that bans sex discrimination.
The agreement in Palatine, Ill., came more than two years after the school district inArcadia, Calif., entered an agreement with the Justice and Education Departments to create new policies after a transgender student who identified as a boy brought a complaint against the district for being forced to sleep in a camp cabin separate from his classmates during a field trip.
In at least two cases, courts have rejected requests by transgender students for restroom and locker room access. A federal judge last year ruled a transgender student at the University of Pittsburgh had no claim of discrimination after he was expelled for using men’s bathrooms and locker rooms on campus. A federal judge also rejected a transgender Virginia teenager’s request for the court to compel his high school to allow him to use the boys’ bathrooms. Both decisions have been appealed.
Roger Severino, director of the DeVos Center for Religion and Civil Society at the conservative Heritage Foundation, charged the Obama administration “has used a regulatory slight of hand to go around the will of the people.”
“The Department of Education is doing violence to the law when it reinterprets sex to mean gender identity,” Severino said. “When Title IX was passed in 1972, sex was commonly understood to be an objective reality referencing biology. If the administration wants to use force of law to require school districts into new locker room policies, they should do it through the democratic process and let people, through their representatives, create a new class of general identity.”
Last month, Alliance Defending Freedom, a group that backs bathroom laws, issued a letter to superintendents in all of Tennessee’s public school districts urging them to reject policies that would open restrooms and locker rooms to transgender students.
“Under no circumstances should schools operate under the mistaken belief that federal law requires them to treat sex as irrelevant to the restroom, shower, or locker room that students may access,” the group wrote in the letter.
Advocates for allowing transgender students to use restrooms that conform with their gender identity say it’s crucial for the safety and well-being of the students.
Sasha Buchert, staff attorney for the Transgender Law Center in San Francisco, noted the Los Angeles Unified School District, an early adopter of permitting transgender students use of sex-segregated spaces that conform with their gender identities, hasn’t reported any problems.
“There’s often a disconnect when you talk about sex-specific spaces and behavior,” Buchert said. “All schools have policies in place to handle misbehavior. The kind of fears that are raised about allowing trans students to access spaces has just not borne out.”
Ahead of his decision, Daugaard, the South Dakota governor, met with transgender activists to discuss the pending bathroom law. He’s also faced public calls from transgender celebrities Laverne Cox and Caitlyn Jenner to veto the bill.
Daugaard told reporters that meeting with activists helped him “see things through their eyes a little better.”
But he also added, “I have my own set of values and in the end I’ll make my own decisions.”