At the end of February, on the 29th day of its brief legislative session, the South Dakota House of Representatives came alarmingly close to passing a toxic piece of anti-trans legislation: a bill that would have forced high school athletes to play on the team matching the gender listed on their birth certificate, effectively prohibiting transgender students from participating in sports. The bill, known as HB1225, won a solid 34 votes, or nearly half of the representatives in the House. Yet, when the final tally came, the bill had garnered an equal number of nay votes, blocking its passage. It was the fourth piece of anti-LGBTQ legislation to wind its way through the legislature during the session.
The defeat of HB1225 and this session’s three other anti-trans bills came as a powerful relief to South Dakota’s LGBTQ activists. But few are ready to exhale just yet. That’s because, if history is any indication, a new crop of anti-trans bills is sure to surface in next year’s legislative session.
In recent years, South Dakota has become a laboratory for anti-trans legislation, a place where extreme right-wing ideologues can field their basest anti-trans fantasies. In total, the legislature has considered 16 anti-LGBTQ bills during the last few years—including, in 2016, one of the country’s first “bathroom” bills. While that measure was ultimately defeated when then-Governor Dennis Daugaard vetoed it, it has since been followed by a rash of related measures, including North Carolina’s infamous anti-trans bathroom measure, HB2. More recently, Tennessee’s legislature passed a watered-down anti-LGBTQ bill that explicitly added bathrooms and locker rooms to the list of places where individuals can be prosecuted for indecent exposure. In 2017 alone, some 16 states fielded a bathroom bill.
Now, as anti-trans legislation continues to rip around the country—as the right wing trains its fiercest anti-LGBTQ attacks on trans bodies, and as state legislatures become key sites of those attacks—South Dakota offers an instructive preview of the battles ahead.
“South Dakota was ahead of the curve,” the Human Rights Campaign’s State Legislative Director and Senior Counsel Cathryn Oakley told The Nation. “The anti-trans bathroom bill in South Dakota in 2016 was the first anti-trans bill to pass a house…. They’re kind of a pioneer in anti-trans legislation.”
To understand how this happened—how a state of less than 900,000 people became an anti-trans bill-mill—it helps to look to the particular quirks of South Dakota’s legislative process. It is this process, perhaps even more than ideology, advocates argue, that has made the state an ideal testing ground for conservative legislation, of which anti-trans efforts have been a key recent feature.
The first crucial element is South Dakota’s brief legislative session; At 40 days long, it is among the shortest in the country, which means that it is an inexpensive state to send lobbyists to for the duration of a campaign. At the same time, the state’s cheap media market makes it a perfect place for ad buys, a state that can easily be saturated with conservative messaging. And an obscure rule on the books that entitles all bills to a committee hearing, combined with a Republican supermajority, makes it an easy legislature to push extreme bills through the process before activists have had a chance to mobilize.
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For right-wing Christian organizations like the Alliance Defending Freedom (ADF), this combination likely helped make the state a prime target for new anti-LGBTQ efforts after they lost the fight on marriage equality in 2015. But a coincidence made the state even more appealing to ADF and its peers.
In 2015, a tiny, apolitical body called the South Dakota High School Activities Association, or SDHSAA, enacted an administrative policy allowing transgender students to compete on the team that matches their gender. Conservatives in the state were enraged, and promptly attempted to pass three separate bills to void the policy. These bills failed, but the controversy that erupted provided the perfect opportunity for ADF and other right-wing groups to swoop in.
In 2016, state legislators introduced another attempt to reverse the SDHSAA policy and, for good measure, crafted the country’s very first “bathroom bill”—HB1008. National right-wing groups like ADF, the Family Heritage Alliance (state affiliate of the Family Research Council) and the Liberty Counsel went to work. ADF’s senior counsel, Matt Sharp, testified at hearings for both bills, while both the ADF and the Liberty Counsel sent letters promising pro bono representation if the state were sued as a result of the legislation. (As Democratic State Senator Bernie Hunhoff pointed out at the time, the offer was a bit of a lemon, since the groups didn’t guarantee to cover damages in the event that South Dakota lost in court, and the state’s use of pro bono attorneys would void its insurance coverage.)
Both the sports bill and the bathroom bill failed (though, in the latter case, again, only after the former governor vetoed it). For national organizations like ADF, that seemed to be that. With an abysmal success rate and the governor’s signal that he would veto future iterations of the bathroom bill, there was little point in sticking around.
Yet, during their brief sojourn, the national groups seem to have awakened a sleeping beast: a collection of South Dakota activists who, fired up by the false narratives circulated by the right wing about trans people as deceitful, dangerous predators, have made it their mission to pass anti-trans legislation in the state.
One of the groups leading this organizing is South Dakota Parents Involved in Education. (The group is part of a national right-wing coalition, US Parents Involved in Education, whose goal is to close the Department of Education, which they see as a federal intruder forcing liberal ideas, like sex education, as well as the Common Core, into local classrooms). SDPIC’s president, Florence K. Thompson, describes herself in her Twitter bio as “SD Conservative GOP T-Party Grandma.” Along with members of affiliated outfits, she regularly testifies at legislative hearings and campaigns against what she describes as “the Transgender Pipeline.” In a recent email to a state senator, she declared that “America has been experiencing a mass hysteria, generated by the liberal media, centered around Sexual Orientation and Transgenderism [sic].” (In addition to her advocacy for anti-trans bills, Thompson recently testified against legislation that would help build preschool programming in South Dakota; in her words, preschool was a part of “recruitment and grooming to the LGBT lifestyle.”)
These activists and their testimony are a far cry from the carefully euphemistic, Beltway-approved language of advocates like ADF’s Matt Sharp, whose testimony in 2016 focused on protecting “the safety and privacy of every South Dakota student.” As Libby Skarin, policy director for the ACLU of South Dakota, told me of the grassroots activism that has risen in recent years: “I wonder whether they [ADF and other national groups] set something in motion that they didn’t even understand.”
And yet, in the words of Equality South Dakota activist Travis Letellier, “It’s not all doom and gloom.” The state might have proposed 16 anti-LGBTQ bills in the past five years, but they’ve only succeeded in passing one. That one law, passed in in 2017, is significant in the scope of its harm—it allows adoption agencies to discriminate against LGBTQ parents—but its success is also an aberration.
So as other states grab the anti-trans baton and run with it, it’s worth asking: What can we learn from South Dakota?
The first lesson seems to be that the voices of the people most affected matter—or, as Skarin put it, “Shut up and listen to trans people.” She elaborated: “One of the lessons we’ve been learning over the last few years is how critical it is to amplify the voices of trans people and to know, as advocates who are not directly impacted, when to step back. Trans people are fully capable of telling their own stories and advocating for themselves.” She pointed to testimony by trans young people who, despite the enormous challenges and risks of speaking publicly, have met with legislators and testified in the state’s capital, Pierre.
Oliver Dickman, a 17-year-old recent high school graduate from Yankton, South Dakota, was one of those young people. Before transitioning, he said, soccer was his life. But he transitioned before the SDHSAA’s policy was in place and chose not to pursue the sport in high school, fearing that there would be no support for him to continue on the boys’ team. When asked whether he thought the state legislature’s attempts to pass anti-trans legislation were in line with public opinion, he said, “I don’t think that at all, actually…. I think as a whole, South Dakotans aren’t opposed to people who are trans. I think those that are in legislature just are uninformed about the trans community, and often fear of the unknown will cause negative reactions.”
Dickman’s analysis lines up with stories repeated again and again by South Dakota activists: that one of the most effective strategies they have used over the past five years in combating these bills has been simply raising awareness, both in the legislature and in South Dakota at large, about what it means to be transgender. As Skarin said, “Back in 2014, I think there were a lot of South Dakotans who probably didn’t even really know what it meant to be transgender, who probably never really thought about it. We have made it a priority to lift up the voices of trans people and let trans people lead. And I doubt that you’d meet anyone in South Dakota who’s not aware of transgender people now, because it’s been such a feature of our state legislature.”
Letellier, of Equality South Dakota, pointed out that the state’s first anti-trans bills didn’t just catch activists by surprise—they also caught the legislature by surprise. “This wasn’t an issue on anybody’s radar,” he said. “They thought, ‘This makes sense on its face. What’s the problem with it?’ But in the last four years, Equality South Dakota and all of our ally groups have done a really strong job of not just educating the state legislature but increasing awareness of the repercussions of these types of bills. It’s much more on everybody’s radar now…. and that works in our favor.”
Opinions are mixed on why then-Governor Daugaard vetoed the 2016 bathroom bill after initially signaling that he might support it—some activists cite his listening sessions with members of the trans community, while others say behind-the-scenes pressure from the business community was probably the more significant factor. But it’s worth noting one event that occurred in mid-February 2016, as the governor deliberated on whether to sign the bill. On February 11, Daugaard was quoted in the Argus Leader, a local paper, saying that he had never met a transgender person. The next day, an op-ed appeared in the same paper by a woman, Kendra Heathscott, who had attended a day program at the Children’s Home Society while the governor was the organization’s director. The headline: “Gov. Daugaard, you met a transgender person: me.”
South Dakota seems to be out of the woods for now, but advocates have little doubt that the battle will continue next year, and perhaps with even more extreme proposals.
“South Dakota continues to introduce outrageous, cutting-edge anti-LGBT legislation,” HRC’s Cathryn Oakley warned. And as the Supreme Court takes up a spate of cases critical to the future of LGBTQ rights—cases that will likely determine whether anti-LGBTQ discrimination is legal in the workplace—the stakes are higher than ever. If the Court rules that Title VII does not apply to gender identity and sexual orientation, there will be no federal law to protect LGBTQ people from catastrophic policy measures like the ones that were floated this year in South Dakota’s legislature.
It’s a good moment to remember what Skarin says they’ve learned in South Dakota: “You have to take every single one of these pieces of legislation seriously; you have to see them as a threat. Sometimes when we see legislation that is sort of out there, there’s a tendency to think, oh, that won’t pass. But each of these bills gained steam in their own way.”
The spate of anti-trans bills in South Dakota and elsewhere in recent years reflects an intentional strategy on the part of the anti-LGBTQ right wing. Having lost the fight on gay marriage and recognizing the increasing national acceptance of lesbian gay and bisexual people, groups like ADF—alongside the Trump administration—have decided to pick off trans people, who are in many ways the most vulnerable and least protected members of the LGBTQ community. It’s a calculated move; a bet that relies on the cisgender lesbian-gay-bisexual community, not seeing a direct threat to their own existence, staying home.
That’s why, as Skarin says, we need an “all hands on deck approach.” She adds, “If we are going to continue to be successful in defeating attacks on LGBTQ people and trans people in particular, we have to take every single threat as an attack on the community as a whole and as something deserving of our attention.”
