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HB 1005: See a Transgender Kid in the School Bathroom? Sue!

Dana Hess got out of Pierre just in time….

Governor Kristi Noem’s latest fake-out attack on transgender kids is now in the Legislative hopper as House Bill 1006, prime-sponsored by anti-LGBT Noem appointee Representative Rhonda Milstead (R-9/Wall Lake) and co-sponsored by the usual pile of radical right-wingers, including Reps. Fred Deutsch, Lana Greenfield, Randy Gross, Charlie HoffmanTom Pischke, and Tony Randolph and Senators Julie Frye-Mueller, Brock Greenfield, and Al Novstrup. (Right now, Aberdeen Republican District 3 Senate candidate Rachel Dix should be preparing the brief that says, “Hey, Al, shouldn’t you be working on affordable housing?”)

But while Noem tries giving school sports stars (and, come on: it will be the sport- and Trump-crazed parents, not the kids, who don’t really give a rip) legal standing to sue transgender athletes for some perceived harm (Big Patty blocked our little Princess’s shot, so we’re suing Patty’s school for a million dollars!), Representative Fred Deutsch is bringing back potty panic with another proposal, House Bill 1005, which would give kids legal standing to sue their schools if they “encounter a member of the opposite sex in a multi-occupancy shower room, changing room, or rest room” of their public school buildings. (Deutsch’s bill does not mention private schools, because, of course, it’s only those godless public schools whose inclusiveness must crushed.)

HB 1005 lays a lot of legal groundwork to get to “I saw a dude in the ladies’ room! Call my lawyer!”

  • Section 1 establishes the thus-far resisted definition of “sex” as “a person’s immutable, bioloigical sex, as determined by the person’s genetics and anatomy existing at the time of the person’s birth.
  • Section 2 mandates that public school administrators designate any multi-occupancy shower room, changing room, or rest room “for use exclusively by members of the same sex.” Section 2 thus bans family rest rooms. (Oops—expect an amendment there.)
  • Section 2 allows students who do not wish to use school facilities designated for their sex (again, as defined by Deutsch as what the doctor wrote on their birth certificates) to petition their schools for “reasonable accommodations.” However, Section 2 forbids schools from accommodating a transgender female by allowing her to use the girls locker room along with all the other girls. Section 2 restricts schools to providing separate single-occupancy facilities to accommodate such students. And just to make it hurt more, HB 1005 requires those students seeking bathroom/locker room accommodations to reapply for their accommodations at least annually. (That’s Fred’s way of making sure that if some school administrator does try to accommodate transgender students in a fair, equitable, “what’s in your pants is none of our business” way, parents on fire for Fred’s Jesus can raise hell, run for school board, and try to replace that liberal menace with some good Christian supe who will deny those students’ next request for accommodation, or at least drag the poor kids through the whole humiliating process every year that they dare seek to take a whiz at school.)
  • Section 4 says kids encountering members of the opposite sex in the designated multi-occupancy facilities can sue for this devastating experience if district policy or a district employee permits the offending encounteree to enter the sacred single-sex space.

It seems worth noting that HB 1005’s triggering “encounter” involves nothing more than the mere presence of a person of the opposite sex—or, to get to the core of Deutsch’s bill, the transgender person using a bathroom whose label does not match the transgender person’s birth certificate. Transgender South Dakotans, your mere presence becomes an actionable offense, a cause for damages, a trauma against all good cis-Christians like Fred.

HB 1005 rests, of course, on an unprosecutable sense of offense. HB 1005 defines sex by criteria that a child in a school bathroom cannot discern. There are plenty of males who look like females and females who look like males, at least on the sort of passing glance that lies within the limits of polite public bathroom etiquette (because, again, Fred, what are you doing staring at people in the bathroom? Don’t we all have important business to take care of?). Children cannot know if they have suffered a damaging encounter unless the encounterees whip out their birth certificates or their genitalia and say, “Check me out! I’m not like you! Booga booga!” Yet HB 1005 gives children and their nosy parents two years before they have to sue the school to dig up evidence that the so-and-so they encountered in the girls room has a birth certificate that says “Boy,” at which point the children will surely collapse in paralyzing anguish at the unknown harm to which that long-ago encounter subjected them.

For bonus weirdness, Representative Deutsch also uses House Bill 1005 to ban school-sanctioned cross-sex sleepovers. (Litigants, prepare your briefs on the single-subject rule.) I’m not sure which school districts are hosting events that require students to be provided with overnight sleeping accommodations, but HB 1005 says that if they do, those schools have to designate all multi-occupancy rooms as single-sex, bunk any young objectors in individual isolation, and face the litigious wrath of any student—not just a student on this coed school sleepover, but any student, without qualification—who gets wind that the school has allowed middle-groundlessly Deutsch-defined boys and girls to bunk overnight together within the same four walls.

Hey, if that sounds crazy, don’t blame me. Fred Deutsch writes this stuff; I just report it.

Representative Deutsch has nine Republican co-sponsors who think this attack on transgender students, on top of Governor Noem’s headline maker, is one of the first things they need to put in South Dakota’s Legislative hopper. Coronavirus? Child careWorkforce housing? Gun violenceSagging state GDP? Nah: in the South Dakota Republican Deutschland, one of the greatest dangers to the fabric of our society is the possibility that certain kids might potty in the same room as certain other kids.

But come on, Fred—let’s drop all the legalistic legerdemain. Word games are no way to fight a grave menace to our communities. Let’s hoghouse HB 1005 to express your real intent: round up all the transgender people, kids and adults, and haul them away to hotboxes in Haakon County, where they can live the rest of their miserable lives in solitary confinement, away from all the good Christian people who live by their God-given genitals and never inflict a whit of harm on our fragile children.


  1. Donald Pay 2022-01-03

    Right in section 1 there is a problem, a definition that makes no scientific sense. Sure, if you define “sex” by “sex chromosomes” you can pigeon hole most, but not all, people by that method. Expression of sex is also affected by other genes on somatic chromosomes. In addition there are other factors that affect expression of sex chromosomes and somatic chromosomes. Those factors include various chemicals in utero and in child development. If you take all this into consideration, Section 1 makes zero sense, because sex is contingent on a lot of genetic and chemical factors.

  2. Arlo Blundt 2022-01-03

    Well…as you know Donald, the Governor is not a scientist and neither is the hate crowd who follow her.

  3. DaveFN 2022-01-03

    Sexuation, as opposed to biological and chromosomal sex as it is generally recognized, concerns the way individuals situate themselves in language, in the discourse of culture that revolves around such matters. That discourse is more fluid than it has ever been when it comes to sexuation. These SD legislators are engaged in an impossible project, namely, trying to control that over which they have no control, cultural discourse. A futile battle that, but one which in all its futility, displays them for all that in all their worthlessness as legislators.

  4. cibvet 2022-01-03

    I’m guessing Alexandria Ocasio-Crortez had it about right calling the repubs “sexually frustrated”. Useless in their own bedroom, so try to get in everyone else’s while submitting their voyeuristic tendencies into legislative bills.

  5. Nick Nemec 2022-01-04

    If the band, or choir, or debate team goes to some contest, festival or tournament several states away and has to endure a long all night bus trip home will the students be required to stay awake for the entire trip? Or possibly multiple buses will be required in case some kids fall asleep in the bus and risk a multi-sex, multi-occupancy room sleepover.

  6. Cory Allen Heidelberger Post author | 2022-01-04

    Nick, that’s a good question about the bus trip. Let’s review the exact language from Section 5:

    If a school district sponsors or sanctions any event that requires students to be provided with overnight sleeping accommodations, the school administrator shall designate each multi-occupancy room used for such purpose as being for use exclusively by members of the same sex, and shall assign students accordingly.

    If a bus is considered an overnight sleeping accommodation, the school admin must designate each “multi-occupancy room” as boys only or girls only. If we consider a bus to be a “room”, then, yeah, if we assume we’re traveling all night and we assume sleeping will occur, then a coed team will require at least two buses.If any transgender kids objecting to their Deutsch-sex are on the team, the school may have to hook sidecars to the bus, one for each transgender kid. Or Coach will just have to make sure nobody sleeps.

  7. O 2022-01-04

    Maybe bathroom use and showering ought not be handled as a herd activity for any identified gender. I’m willing to be that the very nature of how bathroom and shower use is don en masse is because funding doesn’t allow proper privacy concerns for ANY students.

  8. RS 2022-01-04

    Deutsch, the holier than thou catholic, should focus his perverted sexual fears and energy on his own faith that coddles, hides and denies the truly un-christian priestly pedophiles shuttled from parish to parish.

  9. Donald Pay 2022-01-04

    Nick’s question is best handled by districts and band, choir, and debate team leaders/coaches. The debate coach and band and choir leaders know the team members, and how best to handle situations that develop. Let’s say some hotel snafu happened, and you had to cram students into a room. Does this language preclude having brothers and sisters in the same room? If not the entire band may have to go back home. What if you had two gay students, one male or female. It seems rather stupid for this to be handled in state law, because the permutations are endless.

    My daughter’s Rapid City Central debate squad had to travel long distances across the frozen prairie. They slept in the van. Males and females, males and males, females and females all huddled up against the cold Dakota dawn. Mostly they slept, together, until they hit Kadoka for a convenience store coffee and a breakfast of donuts. At some point you have to trust the kids will behave. Mostly they do. Rarely they don’t. You deal with it as it comes.

  10. Richard Schriever 2022-01-04

    American Taliban. next up, all school districts must build and staff separate schools for the different genders. BTW – as pointed out by Don and Dave, biological sex is a complicated affair. As it currently stands almost NONE of the toilet facilities in any school accurately represents the actual variety in sexual biology. Schools are gonna need to build about 18 or 20 different specifically designated bathroom/showers in order to be in proper compliance with that bill’s language.

    These folks are not only trying to control cultural discourse, but natural biology by legislative action. I.E., playing God(s). But then, that is the entire root of religion – man playing at being God.

  11. jkl 2022-01-04

    Did you purposely characterize Deutsch’s bill as “doe snot”, or was that just a typo? Either way it is appropriate.

  12. O 2022-01-04

    This Texas vigilante approach to right enforcement (as opposed to actual criminal law enforcement) didn’t take long to jump onto the slippery slope. This disdain for the “state” — the very state these theocrats ran and were elected to comprise — now attempts to wash it’s hands of actual law enforcement. Let every problem be handled like the January 6th mob; an especially dangerous hading over of power given the armed status of this conservative mob who continues to be fueled by leaders telling them how much they have had taken away from them. Again it is the dangerous, inflaming rhetoric of campaigning winning out over actual governance.

  13. Loren 2022-01-04

    Once again, I am amazed at the GQP fascination with the contents of someone”s underwear. They can’t seem to stay out of other people’s bedroom, bathroom, underwear, uterus… Talk about sexually frustrated, up tight individuals.

  14. jerry 2022-01-04

    Texas, like South Dakota, is ignorant of it’s history. Vigilante justice only brings about an equal response. In Texas’s case, that is how and why the Texas Rangers were formed.

  15. bearcreekbat 2022-01-04

    So, if this legislation motivated by some odd Republican fantasy about supposed teenage sexual titilation or unwanted attention between transgendered kids and biological kids, then perhaps the proponents have not considered one additional unintended consequence. By forcing the titilated teen to share intimate spaces with someone that thinks of themselves and presents as a member of the opposite sex, the proponents of this legislation will allow the very feared supposed sexual aggressor an opportunity to prey upon the supposed naive victims.

    By requiring a transgendered male to reside with biological females, this give the supposed transgendered male predator an opportunity to be titillated by, and possibly sexually approach, the very biological females he is theoretically attracted to as a male. And vice versa for trangendred females who are theoretically attracted to biological males.

    The same holds true for biological sexual predators. By forcing a transgendered female to reside with biological males the proponents of this legislation give those males an opportunity to be sexually titilated, and possibily prey upon, females. After all, most biological males are attracted to females. And as above, vice versa for biological females who are theoretically attracted to males.

    And finally, imagine the trauma that a biological male would experience as he assaulted a transgendered girl but discovered her male biological characteristics. Oh, the horror.

  16. Cory Allen Heidelberger Post author | 2022-01-04

    “Doe snot”—ha! Good catch, jkl. I have corrected the typo above. I apologize to those and to their mucus for unfairly characterizing them in a negative light alongside such vile legislation.

  17. O 2022-01-04

    I look forward to the 156,000+ students of SD ALL asking for the accommodations provided in Section 2 of the bill. I want to see the state build individual bathrooms and showers for EVERY student in SD.

  18. Amy B. 2022-01-04

    Good grief! We need a bill that allows us to sue state legislators for subjecting us to these ignorant backwards legislation they keep trying to force on us. The fact they are more concerned about what is in someone’s pants than they are about the high rates of suicide in the children they target is disgusting.

  19. JO 2022-01-04

    Native Americans knew the reality of transgender members of tribes. Too scary for white male politicians to deal with. Coronavirus? Child care? Workforce housing? Gun violence? Sagging state GDP?
    From the film Little Big Man:
    “You look tired, Little Big Man. Would you like to come in my tipi and rest on soft furs?”
    The real story behind Two Spirit people is that they were highly respected amongst most Native tribes until colonial beliefs and the values of so-called western civilization, brought from the other side of the world, made them an abomination. Hemaneh were essential to Cheyenne culture: the go-between persons for courtships, respected physicians and healers, hard workers who led by example, empathetic counselors known for nuanced and complex thinking, and carefully listened to, well-spoken leaders amongst the tribes.

  20. Eve Fisher 2022-01-04

    My personal theory is that Fred Deutsch caught a glimpse of a photo of an ancient Greek statue of Hermaphroditus (see it here: and was either so enraptured or so horrified that he’s been trying to get rid of anything that even reminds him of it. He needs to grow up and get his mind out of other people’s pants.

  21. jerry 2022-01-04

    Fred was a chiropractor that would make me cringe if I would’ve ever had to have his hands on me. Anyone who is that homophobic, probably got aroused when working on a man’s back and that scares the yell out of him.

    As the son of a Holocaust survivor, you would think he would have some passion for the persecuted, not Fred. Fred is a perfect example of a collaborator.

  22. larry kurtz 2022-01-04

    Chiropractic porn is how Republicans raise money but they call it “adjustments.” It’s when they put you upside down and shake out your pockets while feeling you up.

  23. mike from iowa 2022-01-04

    Representative Fred Deutsch is bringing back potty panic with another proposal, House Bill 1005, which would give kids legal standing to sue their schools if they “encounter a member of the opposite sex in a multi-occupancy shower room, changing room, or rest room” of their public school buildings.

    What if the kids are of legal age and consented to the meeting, as well?

  24. jerry 2022-01-04

    Fred should know from his father’s experience that communal showers were the Nazi way to turn on the gas. Fred and all the legislators, should work towards private showering for everyone that uses the gym.

  25. Mark Anderson 2022-01-04

    Well Nick, our 1971 our senior bus trip from Highmore to Minneapolis was really something special. We saw Poco in Minneapolis, but we had to buy new tickets because they hadn’t heard of Highmore high school. The side of the bus had to be washed before it was returned I’m sure. The sexuality, well I won’t go there. What can anyone expect from the pubs. They want to put everyone back in there place and nobody is going there. I was on the debate squad too, but we all took cars.

  26. Arlo Blundt 2022-01-04

    Growing up in small town South Dakota in the 50’s and early 60’s, I would occasionally question my Father about folks who appeared to me to be of an ambiguous sexuality. He would respond, “Well, it takes all kinds.” If I continued my query, he would say,”It’s none of your business, son.” Our Republican leaders apparently did not have that kind of parental wisdom to guide their way.

  27. John 2022-01-04

    Jerry, so you’re saying that Fred is a, “good German”? The camp at Dachau was surrounded by a town of 40,000 of them. Been there. Dragged my kids through there. Got the t-shirt.
    As the 200+ camps were similarly situated.

    I had recent discussions concerning “friends” “neighbors” “relatives”- other modern “good Germans” — some of whom attended Jan 6th, others who merely supported the trump insurrection. These “good Germans” worship, are foster parents, contribute to the community — but do not walk their talk.
    Zero tolerance. Learn from history. Zero tolerance of the “good Germans”. Not every friend, neighbor, relative is worth retaining – lest you become the “good German”.
    I Will Bear Witness, Victor Klemperer (Vol 1 & 2)
    The poorly English titled, Defying Hitler, Sebastian Haffner
    The future of our republic hangs on calling out and debasing the “good Germans” before they turn the US into a right wing dictatorship.

  28. Porter Lansing 2022-01-04

    These bills serve their purpose, though.

    Get enraged and forget that Governor Kristi Noem paid over two hundred thousand dollars in hush money to get her daughter through a certification exam, her daughter wasn’t skillful enough to pass.

  29. Jeannie Bush 2022-01-04

    In my electrology practice, I spent almost 18 years with transgenders, taking every course I could to learn about this population. They are some of the most kind, caring, thoughtful people. Most do not want to call attention to themselves, expose themselves, shock others. They just want to live peacefully. Kids especially. Some adult trans people are not healthy emotionally in their transition and try to use shock and awe. There are bad actors in all walks of life. These lawmakers are persecutors. Fear mongers.

  30. R. Kolbe 2022-01-04

    Working on a project dealing with sexuality one can find out that one in every 2,000 births the baby has BOTH sets of genitalia expressed.
    How does the State,schools , doctors and parents deal with this!

  31. SuperSweet 2022-01-05

    Make all restrooms multi-gender or whichever and that problem is solved multisex restrooms

  32. jerry 2022-01-05

    Many public restrooms in South Dakota are multi sex. No big deal, ya go in and lock the door.

  33. Cory Allen Heidelberger Post author | 2022-01-05

    The way out is single-holers for everyone. No more multi-occupancy bathrooms. Convert locker rooms to several changing closets, just big enough to fit one kid and a laundry basket.

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