Update: Since this article was published, State Bill 160 was killed in an Education Committee.
A new bill in South Dakota aims to ban teachers from discussing gender identity in schools.
Senate Bill 160 would prohibit faculty and staff from addressing any topics related to transgender issues with students prior to the eighth grade. The brief proposal, which is just 26 words long, would be the first of its kind: Seven states currently have “No Promo Homo” laws on the books prohibiting instruction on LGBTQ issues, but none are specific to gender identity.
The bill’s author, Phil Jensen, has claimed it’s necessary to ensure that K-7 schools remain focused on academics instead of advocacy. “I think we need to be focusing on reading, writing, and arithmetic,” the Republican has said.
But LGBTQ advocates tell INTO that SB 160 could have incredibly harmful impacts on young people questioning their gender identity. In a conservative state where queer and transgender people already have extremely limited resources, it could eliminate one of the few places young people have to turn for support or guidance.
“It could be potentially devastating, especially if a child doesn’t feel they can have a conversation with their conservative family,” says Sioux Falls Pride Community Action Liaison Boots Parker. “You’re really not leaving any options to seek out healthy information.”
“When you take that away from someone who is struggling with something as primal as their gender, it’s like cutting their feet out from underneath them,” Parker adds.
Black Hills Center for Equality President Michael Hanson believes that silence can be dangerous for LGBTQ youth. Queer and trans people, he says, attempt to take their own lives at disproportionately high rates due in part to the belief “society doesn’t want us.”
“When you amplify that with the depression that youth feel, this could have potentially disastrous effects on LGBTQ youthespecially trans youth that are in schools seeing this kind of legislation be pushed forward,” Hanson claims. “I think we don’t fully understand the consequences of this, especially our legislators.”
Research shows bills which either prevent teachers from addressing LGBTQ issues or force them to express the opinion that homosexuality is “not an acceptable lifestyle” have a negative impact on queer and trans students.
Youth who live in “No Promo Homo” stateswhich include Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina, and Tennesseeare more likely to experience bullying, violence, and harassment in schools. Additionally, they are less likely to feel supported by staff and administrators or accepted by their classmates.
But Heather Smith, Executive Director of the South Dakota ACLU, points out that SB 160 is so broad it would impact every student in the statewhether queer, trans, straight, or cisgender.
“Everyone has a gender identity, so this bill would affect all students by inhibiting discussion of everyone’s experience of gender in the world,” Smith claims in a statement. “Everybody deserves to be safe and respected at school. This bill would prevent teachers and staff from providing essential support to all of their students.”
Equality South Dakota Chair Lawrence Novotny adds that the bill also targets “teachers and counselors who can help students who have questions.” Should faculty contravene its guidelines by offering support, they could face disciplinary action.
But advocates believe it’s unlikely that SB 160 will pass.
The bill is one of three pieces of legislation introduced in 2018 targeting the trans community, and the other two efforts have already failed.
One proposal would have mandated that school districts make their bathroom policies public information. Another piece of legislationwhich Jensen also authoredrequired all restrooms in the state to post a notice warning “a person of the opposite sex may be in the restroom the user is about to enter.”
Hanson claims there’s little appetite left for these bills after a similar proposal was vetoed by Gov. Dennis Daugaard last year.
“When a bill is put forward, we can see anywhere from 10 to 15 legislators sign on, but there were only twoone in the east and one in the west,” he says. “Quite a few of the legislators are quite frankly tired of this issue coming forward. They feel like attacking the LGBTQ community isn’t an important thing. They have bigger things to worry about.”
Rep. Susan Wismer expressed the legislature’s exhaustion with the issue during debate earlier this year.
“We have discussed and discussed and discussed this,” the Democrat told colleagues in the House of Representatives. “Every time this bill is introduced it targets a vulnerable population, and I regret that very much.”
Daugaard has expressed his opposition to any further bill singling out trans students, but if SB 160 did manage to pass, it could blow up in conservatives’ faces.
Because the wording of the legislation is so open-ended, it could be interpreted as preventing any and all discussion of gender identity. If every South Dakota student from kindergarten to 7th grade showed up to school wearing drag, faculty would be banned from stopping it. The law states they can’t say no.
“They would not be able to challenge a student on how they’re expressing their gender unless it’s in violation of school dress code policy,” Parker claims.
At its core, Hanson argues HB 160 is a “solution in search of a problem.”
“These legislators think we’re going to have men masquerading as transgender women going into women’s bathrooms to perpetrate sexual assaults against women, but that is not the case,” he says, pointing to the fact that there no verified cases of a trans person attacking someone in a public facility.
In fact, the opposite is true: Sixty percent of trans people claim to have been harassed, attacked, or assaulted in a public bathroom.
Bills like these are only likely to make that problem worse.
A year after passing a bill allowing foster care and adoption agencies to turn away same-sex couples on religious grounds, advocates say it’s important for South Dakota to take a stand against discrimination against its most vulnerable populations.
“We do not support hate,” Parker claims. “It is not a South Dakota value.”