Transgender policy change dies in committee

PIERRE — The Senate Education Committee chose inclusion over fair play on Jan. 24 with the defeat of SB49. The bill would have voided the South Dakota High School Activities Association’s policy regarding the participation of transgender students in sports.

Sen. Jim Bolin, R-Canton, said the bill he sponsored was about fair play in high school athletics. The SDHSAA policy allows students who identify as the opposite gender to compete in sports according to that gender. As an example, a boy who identifies as a girl, after successfully completing the SDHSAA procedure, could compete against girls.

“The potential exists for an unfair advantage,” Bolin said.

Bolin’s bill, similar to one used in Texas, voids the SDHSAA policy and says that competition in sports should be based on the sex listed on the athlete’s birth certificate.

Bolin noted a Connecticut instance in which two boys competed as girls and set records at the state girls’ track meet.

“This should not be allowed,” Bolin said.

Bolin said that under the SDHSAA rules, a boy could qualify under the policy in the seventh grade and compete as a girl through high school.

That would allow the boy “five or six years of competition with no restraint on unfair advantage,” said Bolin, who predicted that under the SDHSAA policy it was only a matter of time before a male student won a championship in a girls’ sport.

“We think it’s very necessary to protect girls from injury,” said Florence Thompson, president of South Dakota Parents Involved in Education.

Lauren Tate, a student from Rapid City Christian School, said it would be unfair for her to have to compete against boys. She noted that she and her brother are both competitive swimmers.

“I know I would never want to compete against someone like my brother,” Tate said.

The original SDHSAA policy was considered for a year before its adoption according to the group’s executive director, Dan Swartos.

The SDHSAA procedure for transgender students starts with the parents contacting the child’s school and making the request that the student be allowed to compete in sports not consistent with his or her birth gender. The school then gathers statements from people who know the student including a health care professional. Those statements and any other evidence goes to the association, which passes it on to an independent hearing officer. The officer, a lawyer, has 10 days to collect more information and another seven days to render a decision.

There is an appeal process if the school or the individual does not like the results of the hearing officer’s findings.

Swartos said SB49 was flawed in a few areas, particularly in its failure to address transgender students who are already competing in sports.

“We need to know what becomes of them,” Swartos said.

The bill also doesn’t address possible litigation schools and the association could face if it doesn’t have a transgender policy. Swartos said that if the state is going to dictate the policy “it should also accept the consequences” of legal action.

Huron School District Superintendent Terry Nebelsick said the SDHSAA policy works for South Dakota.

“The journey to being allowed to compete has many safeguards,” said Nebelsick, a former SDHSAA board member. “I believe the restrictions that are in place give us the best opportunity for fair play.”

Susan, a mother of two from Sioux Falls who refused to give her last name because of the presence of a TV camera in the room, told the committee about her experiences raising a daughter who from an early age identified as a boy.

“He’d rather quit sports than be on a girls’ team,” she said. “This bill singles out kids who just want to participate in sports.”

The crowded meeting room saw a procession of people offering testimony urging the committee to kill the bill. They included representatives of school boards, the Sioux Falls Chamber of Commerce, the South Dakota Education Association, the state’s large school districts, South Dakota Retailers Association, the ACLU, the Sioux Falls School District and social workers.

Bolin noted that some testimony centered on discriminating against transgender students. He said that was the core of the decision facing the committee—whether they wanted fair play in athletics or they wanted to be sure they weren’t discriminating against transgender students.

Sen. Troy Heinert, D-Mission, moved to defer the bill to the 41st day of the session, a tactic that essentially kills legislation.

“Our policy makes sure that everyone is protected, including the trans kids,” Heinert said. “It’s our job to give them the best life we can.”

Sen. Blake Curd, R-Sioux Falls, noted the complexity of an issue that includes biology, faith and the norms of society.

“It does concern me when we take something as complex as that and reduce it to statute,” Curd said.

The committee approved deferring the legislation to the 41st day on a vote of 5-2. The dissenting votes were Bolin and Sen. Phil Jensen, R-Rapid City.