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HB 1008: Deutsch Potty Bill Increases Costs for Schools and State

When Rep. Fred Deutsch (R-4/Florence) first floated his potty bill last month, I noted the principles behind Rep. Deutsch’s urgent need to ban transgender students from the school bathrooms and locker rooms of their actual, chosen sex could be interpreted to require private bathrooms and locker rooms for all students.

Surprise, surprise—Rep. Deutsch’s House Bill 1008 heads in that direction. Check out the language HB 1008 uses to ban transgender students from the locker rooms of their actual, chosen sex:

 If any student asserts that the student’s gender is different from the student’s biological sex, and if the student’s parent or guardian consents to that assertion in writing to a public school administrator, or if the student is an adult or an emancipated minor and makes the assertion in writing to a public school administrator, the student shall be provided with a reasonable accommodation. A reasonable accommodation is one that does not impose an undue hardship on a school district. A reasonable accommodation may not include the use of student restrooms, locker rooms, or shower rooms designated for use by students of the opposite biological sex if students of the opposite biological sex are present or could be present. A reasonable accommodation may include a single-occupancy restroom, a unisex restroom, or the controlled use of a restroom, locker room, or shower room that is designated for use by faculty. The requirement to provide a reasonable accommodation pursuant to this section does not apply to any nonpublic school entity [House Bill 1008, Section 3, filed 2015.12.24].

Read carefully: we don’t want to impose hardship on the school district, but HB 1008 forbids the easiest, cheapest solution, allowing transgender students to use the same locker room as her or his teammates. It instead prescribes separate facilities that the school may not have available and thus may have to build to accommodate student and parent requests.

But if schools won’t spend money to accommodate transgender students, HB 1008 will have the state spend money for them… in court:

If any public school district, school district officer or employee, school board, or school board member is sued in state or federal court as a result of a decision based upon and consistent with a student’s biological sex, notwithstanding any assertion that the student’s gender is different than the student’s biological sex, the attorney general shall represent the school district, school district officer or employee, school board, or school board member at no cost to the school district, school district officer or employee, school board, or school board member, and the State of South Dakota shall assume all financial responsibility for the legal expenses. The legal expenses for which the state is responsible include any award for monetary damages or attorneys’ fees and costs which may be awarded and for which the school district, school district officer or employee, school board, or school board member would otherwise be responsible [House Bill 1008, Section 4, filed 2015.12.24].

The hard-right Republicans sponsoring HB 1008 (a group Pat Powers hilariously mislabels as representing “a fairly broad base among the ideological viewpoints of legislators“) are willing to spend state dollars on schools behaving so stupidly as to get sued for sex discrimination. It will be interesting to see if these big spenders will place a similar priority on making state funds available to help schools behave intelligently and pay their teachers competitive wages.

Unstated is whether HB 1008’s big-spending Republican sponsors will spend money on karyotype testing. HB 1008 says sex is simple and static, “determined by a person’s chromosomes and identified at birth by a person’s anatomy.” Note the and. If school districts wants to get the state’s help on sex discrimination cases, I would assume school districts will have to establish that their litigious students’ asserted sexes differ from their birth certificates and their chromosomes. The school will have to order some karyotypic test to determine the nature of the students’ chromosomes (which may give a more complicated answer than Rep. Deutsch wants), and that might be a thousand bucks or more a pop.

Rep. Deutsch’s potty bill will fritter away valuable Legislative time on the fruitless culture war, time that could be much better spent dealing with truly transformative issues like Medicaid expansion and the Blue Ribbon teacher pay proposal. If passed, this exercise in baseless toilet terror will waste money on a fight the state should not have and will not win.


  1. larry kurtz 2015-12-26 11:54

    Deutsch is a showman and a religious extremist diverting attention from the scandals of his party.

  2. mikeyc, that's me! 2015-12-26 13:48

    Different year, same old crap.

  3. Porter Lansing 2015-12-26 14:17

    Rep. Deutsch (I’ve known the Deutsch’s in and around Watertown for 50 years) apparently believes South Dakota is an island apart from the USA Constitution and our Supreme Court. Mr. Deutsch … your little island is sinking, sir. In the piece that follows Mr. Heidelberger notes the dismay your political party feels when little by little, that which you cling to is disintegrating like cotton candy in children’s hands, at the county fair.

  4. Eve Fisher 2015-12-26 15:06

    Will these people never grow up? God forbid Rep. Deutsch should ever leave the state and go someplace where there are ONLY unisex bathrooms. The solution to prevent sexual mixing? Lock the door.

  5. Porter Lansing 2015-12-26 15:17

    Well said, Ms. Fisher.

  6. caheidelberger Post author | 2015-12-26 15:41

    Eve, Porter, what are you talking about? This is South Dakota, where Republicans believe in using government and regulation and taxpayer dollars to solve problems!

  7. mike from iowa 2015-12-26 16:38

    Kids with brothers and sisters have prolly seen all there is to see as innocent children. Then along comes the anal-retentive,right wing nut jobs who are scared of children acting normal and want to turn them into perverts by reminding them normal sex organs are dirty and make you do bad things. Just like the grownups.

    Sorry teachers,your moron representaives have virtually insured your pay raises will be used to pay off bills incurred in the latest inquisition against transgendered kids.

  8. mtr 2015-12-26 19:03

    Would “reasonable accommodation” be analogous to “separate but equal?”

  9. caheidelberger Post author | 2015-12-27 14:04

    MTR, that’s a really good question, one that should be raised in committee right away. It could form the basis of overturning the potty bill in court… or it could lay the groundwork for requiring schools to build unisex, single-seat bathrooms and locker rooms for all students. Once one group of kids can demand legislative protection from dressing with other kids who make them feel ooky, then every kid can go to the school and ask why he or she is being forced to undress in front of any other students.

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