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 next week 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, what would be the first-of-its kind law in the country.
If Daugaard, a Republican, doesn’t sign or veto the bill by Tuesday, it automatically becomes law.
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, political scientist at the University of Delaware who has studied public opinion on LGBT issues.
The so-called “bathroom law” fights have also been launched in Illinois, Indiana, Kentucky, Mississippi, Missouri, Oklahoma, Tennessee, Virginia, Washington and Wisconsin.
In Oklahoma, legislation has been introduced that calls for withholding of 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 that local school boards develop policies that require restrooms and locker rooms be only used 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 bill made it out of a Senate committee last month that would reverse the state’s two-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 that is lobbying Daugaard to veto the proposed bathroom law.
Polling shows that 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 over the issue 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 in which they argued that 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 that 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 in Arcadia, 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.
Roger Severino, director of the DeVos Center for Religion and Civil Society at the conservative Heritage Foundation, charged that 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.”
Advocates for allowing transgender students to use rest rooms 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 that the Los Angeles Unified School District, which was an early adopter of permitting transgender students use sex-segregated spaces that conform with their gender identities, hasn’t reported any problems with carrying out its policy.
“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 the governor also added, "I have my own set of values and in the end I'll make my own decisions."