NPR reported on July 28 that transgender rights advocates are fighting bans on transgender medical procedures in nearly half of the 21 states that are trying to ban such health care choices. South Dakota’s advocates for transgender freedom are not among those fighters, because fighting costs a lot, and we might lose:
The ACLU is “analyzing whether a challenge to South Dakota’s ban would be effective at this time,” [ACLU-ND/SD/WY legal director Stephanie Amiotte] added.
“Our goal is to ensure that if or when the ACLU of South Dakota files a lawsuit challenging the gender-affirming care ban, we can do so victoriously for all trans families and for all people in South Dakota who are concerned about government overreach, safety of their children and erosion of their constitutional rights,” Amiotte said in an emailed statement.
That “wait and see” approach is “understandable,” said Lisa Hager, an associate professor of political science at South Dakota State University. She said litigation is expensive and time-consuming, and could be unnecessary with a related case possibly on a path to the U.S. Supreme Court.
“In the meantime, similar cases are likely going to be playing out in other courts,” Hager said in an email [Makenzie Huber, “Why Hasn’t a Lawsuit Challenged SD’s Trans Health Care Ban?” South Dakota Searchlight, 2023.08.04].
The ACLU is leading the charge against transgender-care bans in Arkansas, where a federal judge in June said that state’s ban violates the Equal Protection Clause, the Due Process Clauses, and the First Amendment. Arkansas is part of the Eighth Circuit, the same as South Dakota, so ACLU-SD can excuse the absence of litigation in South Dakota by waiting for the Eighth Circuit to do the work for them.
But waiting for the Eighth Circuit and perhaps the Supreme Court may take two more years, during which time transgender families will either suffer or just leave the state. Supporters or transgender equality could have blocked South Dakota’s transgender-care ban this spring with a referendum petition drive, but they didn’t take up that fight, either. The ACLU and rookie Representative Kameron Nelson (D-10/Sioux Falls) signal we ought to give legislators one more chance to change their minds before resorting to a referendum:
Some protesters are hoping to pressure lawmakers to change their positions on the law and repeal it during the 2024 legislative session, which begins in January. Such a move would “undo the harm the new law will inevitably cause for trans South Dakotans – and avoid costly taxpayer-funded litigation, like in Arkansas,” said Samantha Chapman, ACLU of South Dakota advocacy manager.
Rep. Kameron Nelson, D-Sioux Falls, was a vocal opponent of House Bill 1080 during this year’s legislative session. He plans to introduce legislation to repeal the law.
“We’ll be very vocal this next legislative session and demand that my colleagues consider a repeal of HB 1080,” Nelson told South Dakota Searchlight. “As far as a referendum to the people, if (legislators) take no action then, of course, we’re going to consider all of our options” [Huber, 2023.08.04].
HB 1080 passed 60–10 in the House and 30–4 in the Senate during the first half of Session. Nelson and the ACLU will have to change 39 Republican minds on a key vote-getting culture-war issue. Even if they manage that miraculous conversion, they’ll still have to convert Governor Kristi Noem, and she won’t flip; she remembers all to well the stinging rebukes she got from the national conservative punditocracy when she fumbled the ball on a transgender athlete ban.
The Legislature and the Governor will not repeal South Dakota’s transgender-care ban. They won’t be scared off by threats of legal action because they’ll hold out hope that the Alito Court will save their bigotry. Until someone in South Dakota files suit in federal court and secures the same kind of injunction that most other courts hearing these cases have seen fit to issue, South Dakota’s ban will remain in place, and South Dakota’s transgender families will leave this place.