South Dakota 'bathroom bill' opens up conversation about transgender rights

South Dakota may become the first US state to approve a law preventing transgender students from using bathrooms and locker rooms for their identified gender. Even as the controversy highlights divisions, some say it also points to the possibility of compromise.

The passage in South Dakota of a pair of bills that some say target transgender people for discrimination – including a so-called “bathroom bill” – once more highlights the need for open dialogue around transgender rights, some observers say.

The bills, which are both waiting on Gov. Dennis Daugaard’s (R) signature to become law, have underscored the divide between religious conservatives and gender rights advocates in Republican-heavy South Dakota – a conflict that continues to play out both in other states and on a national level. Governor Daugaard has said he will research the issue before deciding whether to sign, according to local media reports.

But even as the controversy over the bills highlights divisions, it also points to the possibility of eventual compromise, some say.

“I think in this case we're seeing a proxy-battle in the larger ongoing culture war between traditionalists and progressives,” writes Erik Fogg, founder of Something to Consider, a Massachusetts-based organization that seeks to promote productive dialogue on divisive issues, in an e-mail. That culture war, he notes, appears to pit two extreme sides with nothing in common against each other: progressives motivated by a desire to right what they perceive as gross social injustices on the one hand; and on the other, traditionalists who are seeing the world they knew being eroded, sometimes in aggressive ways.

“But,” Mr. Fogg adds in a follow-up interview, “people who want to compromise, those people exist. We start by working on it on case-by-case bases and see where we can go from there.”

That, Fogg acknowledges, will be easier said than done. In South Dakota, the first of the two bills – which the Legislature passed Tuesday – would essentially prohibit transgender students from using public school bathrooms or locker rooms for their identified gender. Instead, public schools would need to provide a “reasonable accommodation” for transgender students, which may take the form of unisex or single-occupancy restrooms, or the “controlled use” of a restroom designated for faculty.

Supporters of the bill have hailed it as a way of upholding the state’s moral values, and a necessary step toward protecting students’ privacy.

“We certainly support this legislation,” says Peter Sprigg, senior fellow for policy studies at the Family Research Council, a national conservative Christian group based in Washington. “This is a way of protecting the privacy of rights of the majority while also providing a reasonable accommodation for the minority of people who identify as transgender.”

He says the law does not force transgender people to use a group restroom that’s contrary to how they identify.

“We’re not saying they can’t identify as transgender,” Mr. Sprigg adds. “But the interests of the majority have to be considered.”

Advocates for lesbian, gay, bisexual, and transgender rights, however, argue that the bill unfairly puts a spotlight on transgender students, who are likely going through personal struggles as they come to terms with their identities.

“We’re talking about the age when kids are just understanding [their gender identity],” says Bill Mawhiney, treasurer for the Center for Equality, an LGBT-rights advocacy group in Sioux Falls, S.D. “When you see these teenagers go through that struggle, the last thing they need to be told is, ‘We’re going to label you, we’re going to identify you.’ You’re forcing them to stand out.”

The language of the second bill, passed on Wednesday, is not explicitly antitransgender: It requires any public body of the state – from cities and towns to boards and commissions – to recognize as valid all information on a person’s birth certificate. But LGBT advocates, such as the Human Rights Campaign, say that the law would force people to be identified based on whatever happens to be on their birth certificate, without regard for how they identify themselves.

“I think what we’re seeing here are state legislators who are reacting to a changing world and trying to hold onto a path that is no longer the case,” says Cathryn Oakley, who serves as the organization’s senior legislative counsel for state and municipal advocacy.

Some legislators have dismissed such concerns. “I'm sorry if you're so twisted you don't know who you are,” said Sen. David Omdahl (R) to the Associated Press. “I don’t even understand where our society is these days.”

Such back-and-forth is typical at this stage of a contentious conversation, when both sides are fighting to assert their righteousness, Fogg says. But it doesn’t mean compromise is impossible – only that the situation may get worse before it gets better, he notes.

“This law and other activity like this is going to bring transgender stuff into the limelight in a way that it hasn't been for most people other than the die-hard progressives and, to a lesser extent, the die-hard traditionalists. That limelight is going to be temporarily really divisive,” he writes.

But the debate over marriage equality took a similar trajectory, Fogg points out: It took the LGBT community decades of opening themselves up to people with different opinions and perspectives before tolerance, and eventually acceptance, began to take place in a meaningful way.

“It’s a long game,” he says. But, he adds, “They can ‘humanize’ each other and both sides can figure out that OK, trans people are real and not weirdos like Bill from 'Silence of the Lambs,' and the progressives can figure out that a lot of the opponents here are parents that are just genuinely concerned about raising their kids, rather than hick bigots running around draping people with the Confederate flag.

“That cross-humanization will help people start trying to maximize the good for everyone rather than assuming the other side is out to do harm,” Fogg says.

Both Fogg and Mr. Mawhiney at the Center for Equality agree that LGBT advocates may need to take the lead in encouraging dialogue.

“When we’ve gotten people at the table to sit down with us, there’s always common ground,” he says.”The resistance is [around] coming to the table. [So] we have to be better. We have to share our story better, be better at presenting information.”