Republican Gov. Dennis Daugaard shocked conservatives Tuesday when he vetoed legislation that would have prohibited students in South Dakota public schools from using opposite-sex restrooms, locker rooms and shower facilities.
The decision is a boon for transgender advocates who lobbied the governor to reject the bill, arguing it was discriminatory and would have harmed the emotional well-being of transgender students.
Mr. Daugaard said local school districts are best equipped to make decisions concerning how to accommodate individual transgender students.
“As policymakers in South Dakota, we often recite that the best government is the government closest to the people,” Mr. Daugaard said in a statement. “Local school districts can, and have, made necessary restroom and locker room accommodations that serve the best interests of all students, regardless of biological sex or gender identity.”
The governor also said the bill would have invited federal litigation without properly equipping schools to deal with the increased liability.
The decision came after Mr. Daugaard met with transgender students last week in closed-door meetings while weighing whether to sign the legislation. Reports had indicated Mr. Daugaard was leaning toward signing the bill, which comfortably passed both the Republican-controlled state House and Senate.
The Human Rights Campaign, which lobbied Mr. Daugaard to veto the bill, said the “voices of fairness and equality prevailed.”
“Governor Daugaard chose to do the right thing and veto this outrageous legislation attacking transgender kids,” the group said in a statement Tuesday.
Proponents of the legislation contended it’s inappropriate to have adolescent boys and girls showering and changing in the same room. They also framed the bill as a compromise, pointing to a provision instructing schools to grant nonconforming students “reasonable accommodation” to alternative facilities.
Ryan T. Anderson, the William E. Simon fellow at the conservative Heritage Foundation, said Mr. Daugaard’s justification for the veto on the grounds of subsidiarity made little sense.
“Remarkably, the governor justified his veto by claiming the bill would undermine local control. Nothing could be further from the truth ” Mr. Anderson told the Daily Signal on Tuesday. “It respected local control while ruling out one, and only one, bad option: boys in girls bathrooms.”
It wasn’t immediately clear whether South Dakota legislators would try to override the veto, in part because it was unexpected. But while House passed the bill by a margin easily sufficient to override a veto, but the Senate only gave the bill a 20-15 victory, four votes short of the needed clear two-thirds majority.
Biological sex was defined in the bill as “the physical condition of being male or female as determined by a person’s chromosomes and anatomy as identified at birth,” which would have barred transgender students from using facilities for the gender with which they identify.
South Dakota would have become the first state in the nation to enact such a law, which was aimed at pre-empting an increasingly emboldened transgender-rights movement which has scored significant legislative victories in recent years.
The proposed law was spurred by a series of nationwide attempts — some more successful than others — by the transgender movement to increase access to sex-segregated public amenities. They want “men” and “women” to be defined under the law not as biological sexes but as gender identities.
Most notably, voters in Houston overwhelmingly rejected an anti-discrimination ordinance in November which would have granted transgender people access to public restrooms of their identified gender.
But other constituencies have carried the mantle of transgender rights where Houston would not. In North Carolina, for instance, the Charlotte City Council voted last week to allow transgender people to use public restrooms of their choice, drawing the scorn of Republican Gov. Pat McCrory.
The South Dakota bill was also seen as a proactive step against federal agencies such as the U.S. Department of Education, which has consistently agreed with the “gender” over “sex” argument and accordingly extended Title IX sex-discrimination protections to transgender students use of restrooms that match their “internal sense of gender.”