South Dakota legislative committee kills bill requiring transgender student athletes to compete according to "birth sex"

PIERRE, S.D. -- A bill that would have forced transgender students to participate in sports based on their “birth sex” rather than their preferred gender identity has been killed in a legislative committee.

The Senate Education committee on Thursday, Jan. 24, deferred to the 41st legislative day -- essentially killing -- Senate Bill 49, which would have voided the South Dakota High School Activities Association's current policy on transgender student athletes.

The current policy has been in place since 2015 and allows students to participate based on their preferred gender identity. SB 49, introduced by Sen. Jim Bolin, R-Canton, would have required students to participate based on their birth sex as listed on their birth certificate, or determined by a physician in a medical exam.

SDHSAA Executive Director Dan Swartos told committee members that in order for transgender students to be able to compete as their preferred gender identity, the SDHSAA’s policy requires correspondence between the student’s parents, school administrators, the SDHSAA and a physician before granting the exception. The school is also required to discuss with the student any potential concerns of unfair competition.

He said there has never been a case where the SDHSAA has denied a student’s request to play on their preferred team over concern for unfair competition.

Bolin said this -- fairness in competition -- was his No. 1 priority in introducing the bill. A former educator and athletic director, he said prior to Thursday’s committee hearing that he believed SDHSAA’s current policy is “detrimental to fair competition” and that there are different standards for men’s and women’s sports for a reason.

“The key error is that the SDHSAA has elevated the concept or claim of gender identity to a level above all others, especially the concept of fair competition, which should be of higher priority,” Bolin said when presenting his bill to the committee on Thursday.

According to a September 2018 report by the American Academy of Pediatrics, transgender adolescents attempt suicide at a disproportionately higher rate compared to their cisgender peers. Over half of those surveyed aged 11-19 years old who transitioned from female to male had attempted suicide in their lifetimes, and nearly 30 percent of those who transitioned from male to female had. By comparison, less than 18 percent and 10 percent of cisgender females and males surveyed, respectively, had attempted suicide.

Swartos said following Thursday’s hearing that since the SDHSAA adopted its current policy in 2015, it has never received formal complaints from schools or community members. To protect student privacy, he declined to specify the exact number of students currently competing under the policy, but said it was “less than a handful” in the state.

More than three times the number of people that testified in favor of the bill testified in opposition, with five commentators supporting SB 49 compared to 16 opposing. Some organizations who opposed the bill to committee members were the American Civil Liberties Union of South Dakota, Human Rights Campaign, Sioux Falls Chamber of Commerce and School District, Equality South Dakota and more.

Policy Director Libby Skarin said that ACLU-SD opposed SB 49 because of the “pain that this (bill) causes trans kids,” as well as the litigation group’s stance that it violates the Constitution’s Equal Protection Clause and Title IX. Though she said there has not been a specific ruling on transgender students’ athletic participation in federal court, Skarin said there have been several courts have ruled that discrimination of transgender people is discrimination on the basis of sex, thus violating Title IX.

Susan, a Sioux Falls mother who wished to keep her surname private to protect the safety and identity of her children, said her son, born a female, began saying he felt he was a male since age 3. Now 12 years-old, she said he identifies as male. Susan said she doesn’t know if her son will want to play sports in high school, but if his only option was to play on a girls team, “a kid who loves sports, he’d rather quit sports than play on a girls team.”

“You don’t have to completely understand what it means to be transgender, but I want you to know that this bill singles out kids who just want to be themselves,” Susan told the committee.

William Kayser is a senior at University of South Dakota, where he is an adviser for the school’s on-campus LGBTQ+ student group. A former high school wrestler (at the time, he identified as female and competed on a male team), Kayser said bills like SB 49 are damaging not only to transgender student athletes, but can make young transgender South Dakotans, as a whole, feel unsafe and unwelcome.

“You see this and then you immediately become the ostracized person,” Kayser said. “You’re the person that everyone stares at.”

As of Thursday evening, no other bills regarding transgender rights have been filed for the 2019 legislative session. “Bathroom bills” and a bill similar to SB 49 have been introduced in past years.

In the end, committee members decided that the SDHSAA’s policy has not caused issues thus far, and that there was no need for the Legislature to rewrite the existing policy. They voted 5-2 to kill the bill so it would not advance to the full Senate for a vote.