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Jackley Signs SD onto Nebraska Suit Against Obama Transgender Directive

Attorney General Marty Jackley signs his name to another grandstanding, losing lawsuit. Today he announces he has tied our state to the stone cast in federal court by Nebraska and eight other states against the Obama Administration’s guidance to schools on transgender student access to school facilities.

A.G. Marty Jackley sounding the alarm?
A.G. Marty Jackley still in potty panic.

As Attorney General it was and remains my hope that our country and state lawmakers can find a solution to the transgender bathroom concerns.  However, the President’s mandate or directive that children of opposite sex must be required to share locker rooms and bathrooms under the threat of lawsuit and withholding of education funding is a solution that goes beyond his authority.  I am therefore joining other Attorneys General in the Nebraska litigation to clarify that federal law cannot mandate that children of opposite sex be required to share locker rooms and bathrooms [Attorney General Marty Jackley, press release, 2016.07.08].

Notice that A.G. Jackley perpetuates the convenient false binary language his Republican friends in the Legislature use to deny the legitimacy of transgender identity. He declares that the suit is about preventing “children of the opposite sex” from sharing locker rooms and bathrooms. Not gender, but sex, biological sex, defined by whatever standards Jackley and his counterparts in the suit want to impose on transgender kids to deny them their legitimate claim to an identity they want to practice.

The Nebraska lawsuit comes in tandem with a separate 13-state court challenge led by Texas against the Obama Administration’s anti-discrimination effort.

A.G. Jackley says, “There is no cost for South Dakota to join these proceedings.” Perhaps no fiscal cost—he collects his $112,096.28 a year whether he signs onto this brief or puts his feet up on his desk and calls 2018 campaign donors all day. But in the time it took Jackley to review the case Nebraska wants to make and write up this press release, how many more receipts from Scott Westerhuis’s GEAR UP scam or bank statements and wire transfers from Joop Bollen’s EB-5 affairs could our top cop have studied? How many previous rulings could he have looked up and added to the file he’s using to crush the payday lenders’ specious effort to deny 526,903 South Dakotans the chance to vote on Initiated Measure 21?

Along with opportunity cost to prosecute real crimes and fight pressing legal battles for South Dakotans, don’t forget the moral cost of being wrong, dead wrong, and fighting for discrimination over decency. Remember, neighbors, this man wants to be our next Governor.


  1. Vickie 2016-07-08 16:54

    Oh Marty. Stop joining other states’ lawsuits. Do you like losing so much? And just how much SD taxpayer dollars are you wasting? smh

  2. SDBlue 2016-07-08 16:57

    I wish the people of South Dakota could sue this idiot for all the taxpayer dollars wasted on frivolous lawsuits.

  3. Paul Seamans 2016-07-08 17:36

    I wonder what it would cost in lawyer fees to file our own brief in support of the federal law. I am still thinking of filing one in support of President Obama’s decision to deny TransCanada a permit on the Keystone XL.

  4. MK 2016-07-08 17:47

    Once again, it is a slap against our sitting President from the grand Republican state of SD. From our three Reps in Washington DC to our local leaders; it is lam-bash the President and his agenda or legacy.

  5. mike from iowa 2016-07-08 17:52

    I seriously doubt Jackley has the standing to tell the Potus he is exceeding his authority.

    He would have a scintilla of hope if Scalia was alive and kicking.

  6. Rorschach 2016-07-08 18:21

    I could tolerate the follies of a right wing AG a little better if he conducted the truly important aspects of his job more diligently. Like promptly clearing the backlog of untested rape kits that stacked up on his watch. Like promptly testing and entering the DNA swabs collected from felons and the rape kit DNA into the national DNA database to help solve unsolved crimes. I’d rather see press releases about rapists prosecuted and cold cases solved by South Dakota’s laboratory than this sort of “I’m running for governor” BS.

  7. El Rayo X 2016-07-08 19:00

    Is this law suit about who can crap where or is it about federal funding tied to government mandates? The reason I ask, there are thousands of South Dakota adults that would like to drink legally without the state losing its federal highway funding. Can that be piggy backed with this law suit?

  8. Mark Winegar 2016-07-08 19:32

    The AG is signaling his compliance with the GOP’s newest attempt to create a wedge issue but they overlook intersex (hermaphrodite) individuals. One out of every 1,500 – 2,000 Americans is born with genitalia other than strictly male or female. We have always lived alongside these individuals without notice or disturbance. Transexuals are not perverts who want to expose themselves rather they are not comfortable in their biological gender and wish to be viewed as something else. To expose themselves would deny their innermost desire. What is exposed is a sad attempt to cause a disturbance over a non-issue.

  9. Dicta 2016-07-08 19:50

    Somebody’s signaling to his base!

  10. jerry 2016-07-08 20:24

    Wow, check this out with Hillary and Bernie Looks to me like it is getting very close for a feller like me to support Hillary for president. Yet another yuuuuuge positive progressive change. Maybe Hillary will take South Dakota for what it really is, a failed welfare state and just let us fail.

    South Dakota will loose again and burr noggin will keep getting his blood money for doing diddly. I fear there is no hope for this state other than corruption at the highest levels. He is measuring the curtains for the regime change. South Dakota voters will only notice that he is all in against those who are just trying to survive.

  11. leslie 2016-07-08 21:00

    Jerry-u r funi. Thx

  12. leslie 2016-07-08 21:08

    Without discussing Daugaard, republicans elected 3 grandstanders, J, T&N, but Rounds seems to be keeping his head down till EB5 dust rising around the Nation, settles in the next 6 years.

  13. owen reitzel 2016-07-08 21:27

    Lets make sure that when Jackley runs for Governor and mentions all this lawsuits we’ll have to keep track on how many he’s won

  14. caheidelberger Post author | 2016-07-08 22:12

    Owen, to do that, we will need a Democratic gubernatorial candidate who is willing to call Jackley out on his culture-war distractions, a Democrat who is willing to make LGBT rights, abortion rights, and the merits of the Affordable Care Act centerpieces of his or her campaign. We will need to back that Democratic candidate up with a coalition of Legislative candidates statewide who are willing to repeat that message to their local voters. Do we have Dems who will fight that fight?

  15. Donald Pay 2016-07-08 22:40

    I thought Republicans wanted to get rid of federal education dollars. They are always hooting and hollerin’ about abolishing the Department of Education, yet they seem to want the money the Department of Education doles out without any accountability. Not a smart way to run anything, but that’s the Republican way. That’s what brings the state Gear Up scandals.

    Uh, no. You can’t have it both ways. Here’s the deal: state government doesn’t need to take those federal dollars. It’s like Medicaid expansion. No need to pussy foot around with some stinkin’ lawsuit. Why doesn’t Jackley act like a man and advise the state to pay its own way, give up the federal money. Instead he tries to make yourself look tough by bullying transgendered kids. Creep.

  16. JMG 2016-07-09 07:20

    Like Secretary of Army Eric Fanning stated, education, teaching, & learning.
    Think of it as a fetish.

  17. Jon Holmdal 2016-07-09 14:37

    I think most South Dakotan’s would like to see this Attorney General tend to business and go after the wide spread corruption across the state that both gives us one of the worst reputations of any state in the union and also dilutes the usefulness of our tax dollars. I know personally that Jackley is failing South Dakota in fighting corruption and I know he has had the opportunity to do more!

  18. Roger Elgersma 2016-07-09 14:59

    When the gay thing got big in San Francisco I saw a documentary on TV about someone going to interview people at one of the first hospice houses for those with Aids. They found that ninety percent of those men did not have good male role models when they were boys. Now we have a very large amount of kids being raised by single moms. Partly because they do not marry and partly because the courts routinely kicked out Dads in divorce. More good Dad’s got kicked out than bad Dad’s. So many boys did not get good male role models so now they want to go to the girls bathroom because they identify with girls and not with boys. Letting them go to the girls bathroom will not teach them male role models either.

    Having law suits about the after effects of large problems will not solve the causes of the problems. But it makes for a lot of political dialogue on how right we are and how wrong those other guys are.

  19. caheidelberger Post author | 2016-07-09 15:30

    Good point, Donald. We could boot the whole Obama directive if we took Mike Rounds’s 2014 rhetoric seriously and booted the federal Department of Education from our state. But there we go expecting consistency from conservatives again.

    If we did take that tack, Jackley would have much more time to pursue the corruption Jon talks about. Of course, given that a lot of the corruption making the news has to do with abusing federal programs, maybe pulling the plug on all federal funds would reduce corruption and Jackley’s workload!

  20. caheidelberger Post author | 2016-07-09 15:34

    Roger, you’re mixing homosexuals and transgender people. Different groups, different states of mind. The President’s policy does not demand that schools allow homosexual females to use the boys’ bathroom.

    (And I do need to take an unrelated poke here: not only do I reject the suggestion that transgender kids are just a product of single moms confusing their kids, but I don’t think the courts in a still male-dominated judiciary and in a society where women still face serious disadvantages in political and economic power are engaged in a pattern of discrimination against men.)

  21. Donal 2016-07-10 09:36

    Jackley is a meddling a—–e!! He needs to shut up and keep his own sick religious paranoid opinions to himself. He needs to go after the real criminals in this state starting with that moron of a governor and maybe start checking into the financial dealings of Kristi the Noem and the shoe shine boy Thune, and of course Killer Rounds

  22. DJ 2016-07-10 12:25

    Thank you. Here are 4 questions for President Obama:

    1) Why are only transgenders deserving of dignity?

    2) Why would you require biological girls to share bathrooms, locker rooms, showers, and HOTEL beds (during school trips) with biological boys? See quote from “dear colleague” letter below:

    Housing and Overnight Accommodations. Title IX allows a school to provide separate housing on the basis of sex. But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students.

    3. How can you propose a policy that violates peeping, illegal exposure, and sexual harassment laws? Equally important is that creates a hostile environment (for those of us not transgender) which is also illegal.

    4) Finally, why would anyone sworn to uphold the US Constitution decide that tyranny is better that democracy???

  23. Donal 2016-07-11 06:23

    Why would you want a girl/woman who looks and acts like a boy/man in the girls/boys locker or rest room?
    Who is going to police the restrooms and how?
    How many people using the those facilities object?
    Where did you get an education that caused you to be such an ——-?
    Pease continue your born again ——– comments as we really enjoy learning how uneducated morons actually function. Thanks

  24. caheidelberger Post author | 2016-07-11 08:55

    DJ, no one’s dignity is harmed by allowing equal dignity to all citizens. Equal dignity protects everyone’s dignity.

    Speaking concretely, how do I lose any dignity based on someone else’s choice of where to pee?

    I’ll need to see the specific language that requires anyone to share a hotel bed with anyone else.

    Peeping and other such harassment is already illegal. Anyone, LGBT or not, leering at little kids or otherwise creating a hostile environment in the bathroom can be prosecuted. But just going in to do and mind one’s business is not harassment. Preventing people from doing so is.

  25. Ryan 2016-07-14 16:18

    I don’t think this issue is really just about who uses what bathroom. I think at least some of the people who oppose the “open bathrooms / infinite genders” idea are genuinely concerned with the underlying concept of some other people “selecting” their genders based on their feelings at any given time, and expecting accommodations for those feelings.

    I have no doubt that there are people who legitimately identify with a gender other than the one represented by their genitalia, and I don’t think their rights or dignity should be held hostage by a minority population of “fakers” who hold themselves out as transgender for the sake of gaining sympathetic attention for how special they are or for how difficult it must be to be uncomfortable in their own skin. However, I do believe that the concern over “fakers” is at least a reasonable concern in light of the fact that a lot of the conversation relates to public schools. Mature adults don’t attend public elementary, middle, or high schools. Kids do. Kids are not mature by definition, so expecting them to act mature when it comes to what happens in bathrooms and locker rooms is short-sighted at best.

    Children are given very few rights because we, the public, have decided that they aren’t capable of negotiating or understanding contracts, drinking alcohol responsibly, voting for public officials with any semblance of critical thinking, committing to sexual or marital relations, operating vehicles safely, or many other tasks that “mature adults” are able to handle.

    How can our society admit that children lack the necessary faculties to make adult decisions and then expect them to do so regarding this one specific topic? I think some people are concerned that high school kids with elevated hormone levels will make childish, selfish, and maybe even predatory decisions if they are allowed to “pick” a gender that gains them access to a locker room full of the genitalia they want to see. As a parent, I don’t think it’s ignorant, sexist, or crazy to be concerned about that.

    It comes down to accountability for a lot of the people opposed, I would guess. It’s impossible to know who is a “faker” and who isn’t. It’s completely subjective and nobody can prove another’s intent or genuine gender identity. I can’t think of any other body of law or public policy driven by the whims of teenagers who seem to have somehow become an oppressed class of complainers that adults want to coddle out of fear that their feelings might get hurt if they don’t get whatever they want, right now.

  26. caheidelberger Post author | 2016-07-14 16:29

    Actually, in the schools, in the context of legislation South Dakota tried to pass, we do know fakers from real trans kids. The SDHSAA transgender policy assumes that school officials engage trans kids and their parents in a discussion of real needs to craft appropriate accommodations. Never has anyone in SD proposed letting a kid just up and use a bathroom because he feels like a she today. No one is advocating a policy where kids flip bathrooms day after day. We’re not making policy based on anyone’s “whims”.

    It is at least ignorant to suggest that predators are using this issue to get a look at genitals for kicks, since responsible reporting has shown that such bathroom panic has no basis in evidence:

    If it is difficult to know fakers from real trans kids, then it is at least as difficult to know some girls from some boys just by looking at them in the hall. I guess we’d better do away with shared bathrooms entirely. Single-holers for everyone!

  27. leslie 2017-07-21 15:45

    Mr. Jackley:

    Gov. Daugaard thinks “These government ‘travel bans’ are political statements that have no discernable effect. They are designed to generate publicity.” This is going to effect my convention business as Rapid City seeks to tear down and rebuild the Civic Center for $180 mil

    Maybe we shouldn’t have a statewide discrimination policy, hmmmm. That damn disabilities act…get rid of it Mr. Trump!!!!

    Yours, Republican Mayor Allender

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