January 26, 2016

State Capitol Building

500 East Capitol Avenue

Pierre, SD 57501

Re: HB 1008 and the Rights of Transgender Students

Dear Representative,

I write on behalf of Human Rights Watch to share our concerns about HB 1008, a bill that would deny students access to bathrooms and locker rooms in public schools consistent with their gender identity.

HB 1008 would define a student’s biological sex as either male or female based on the student’s chromosomes and anatomical identification at birth. It would mandate that bathrooms and locker rooms designated for student use may only be used by students of the same biological sex. Students whose gender identity differs from their biological sex would be required to obtain written permission from a parent to request a reasonable accommodation. Even with written permission, schools would be legally prohibited from extending access to the facilities used by other students, and would not be required to provide alternatives at all if doing so presents an “undue hardship.”

Human Rights Watch has interviewed hundreds of students, teachers, administrators, and parents about lesbian, gay, bisexual, and transgender (LGBT) issues in US schools. In 2001, we explored the topic at length in a report, Hatred in the Hallways, and in recent months, we have spoken with dozens of LGBT youth who experience harassment and discrimination in schools around the country. We believe HB 1008 is an unnecessary bill whose adoption would carry serious negative consequences for students, school districts, and the State of South Dakota.  HB 1008 has especially troubling implications for transgender students, who sincerely identify as a gender other than the sex they were assigned at birth.

First, HB 1008 discriminates against transgender students on the basis of their gender identity. It treats transgender girls differently from other girls and treats transgender boys differently from other boys. It does so to deny transgender students – but not other students – access to shared facilities that they can use comfortably and safely during the hours they are in school. Such treatment sends a false and stigmatizing message that transgender youth are sexually predatory or threatening to their peers and cannot be trusted to share facilities with other students.

Second, HB 1008’s requirement that students use facilities according to their biological sex poses serious health and safety risks for transgender students. In recent interviews in schools around the United States, Human Rights Watch has found that transgender girls who use a boys’ restroom and transgender boys who use a girls’ restroom are highly vulnerable to bullying, harassment, and assault by other students. Furthermore, transgender students who are unable to use a bathroom where they feel safe and comfortable frequently forgo restroom use altogether, a dangerous practice that places students at risk of dehydration, bladder infections, urinary tract infections, and kidney problems.

Third, HB 1008 raises serious privacy concerns. Many transgender students change their appearance, undergo medical intervention, or change schools as a part of their transition, and in many cases, other students are not aware of their transgender status. Requiring those students to use facilities according to their biological sex, or a different facility from other students, outs those students as transgender to their peers. HB 1008 is especially insensitive to the hostility students may face at home. Requiring written permission for a school to accommodate the student’s needs ignores that many transgender students do not or cannot come out to their parents, and that parents who disapprove of their child’s gender identity may decline to provide permission even when necessary for the child’s well-being in school. The requirement that a student’s gender identity must be sincerely held is sufficient to facilitate access for transgender students and prevent other students from abusing accessibility guarantees.

The serious problems raised by HB 1008 are avoidable. Schools around the country have demonstrated they are capable of making arrangements so that all students are able to use restrooms and locker rooms safely and comfortably. Some schools find that providing gender-neutral options is feasible and satisfactory for transgender students, while other schools opt to install private bathroom stalls, shower stalls, or curtains that offer greater privacy to all students in existing facilities. Schools are best equipped to accommodate a transgender student’s needs and determine whether various options would be feasible in terms of comfort, safety, privacy, accessibility, and architecture. HB 1008 would tie the hands of schools and school districts by imposing a blanket rule that is insensitive to the needs of transgender students and the viable solutions that schools are currently able to provide.

HB 1008 is an unnecessary bill that would have serious, harmful repercussions for South Dakota’s children, and we urge you to oppose the legislation. Please do not hesitate to contact us if we can provide further information.

Sincerely,

Graeme Reid

Director, LGBT Rights Program

Human Rights Watch