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ACLU, Transgender Advocates Not Suing or Petitioning, Hoping for Salvation from Other Courts or Miraculous Conversion of Legislature and Noem

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.


  1. P. Aitch 2023-08-07 10:12

    Transphobians like your Governor Noem know deep down they can’t win this battle any more than they could stop same sex marriage or Black and Native voting rights. The transphobes just need to make someone different than them suffer. Isn’t that a deviant behavior? Yes, it is.

  2. Kyle 2023-08-07 12:28

    It is disappointing that the South Dakota ACLU has not filed suit on this yet. I assumed when our law was passed that a suit would be filed right away. They may get a legal ruling through other means, but it will come too late for the families being impacted right here, right now. The ACLU is already involved in this litigation in multiple other states, so the blueprint is there and they can probably use many of the same witnesses.

    The issue appears headed for the Supreme Court no matter what.. Maybe the hope is that it gets there more slowly and a conservative justice gets replaced before it does, but I doubt adding South Dakota to the mix would expedite things much.

  3. O 2023-08-07 12:46

    This is a perfect example of how the radicalized court system (the success of the Republican Party) is a mine field for those who truly believe in things like equality and equal protection. it used to be that the Supreme Court had the backs of basic rights for all; now that is not the case, there must be real fear to let the Courts define AWAY rights. Once the courts rule, that tends to be the ballgame. I hate that we live in a political climate of limiting losses for our disenfranchised friends.

  4. Mike Lee Zitterich 2023-08-07 13:30

    You all blame the Legislature and the Governor on this issue, but our “representatives” are not gonna be scared by threats of lawsuits, mainly cause South Dakota Citizens stand behind the law itself. THEY do not want this commercial activity inside our state borders. I stand with the majority of all Citizens, the Precincts, the Legislative Districts, the Counties on this topic. When people like yourself call one of us a bigot, your calling ALL Citizens of the State bigots, cause NO Where, do I see any of these types of activities being legalized in S.D

  5. larry kurtz 2023-08-07 13:35

    Mr. Zitterich, the most obvious cognitive dissonance set up by legislation like South Dakota’s HB 1080 is removing parents’ ability to provide informed consent in states where Republicans preach parental rights.

    DDT, other ag chemicals and BPA in baby food have already altered the genes in at least three generations not to mention what toxoplasma gondii has been doing to human genetics since time immemorial. But, allowing minors without parental consent access to powerful drugs that alter body and mind is not good governing. If legislatures really want to help kids they should fund research and lawsuits to push back against the Earth haters who manufacture poisons, for mental health professionals to treat adolescents with gender dysphoria and codify age of consent rather than issue blanket denials to all minors.

    In South Dakota minors can apply for therapeutic cannabis permits with parental or guardian consent, ffs.

    A pregnant female not yet at the age of consent is the victim of a crime so if a minor is suffering from gender dysphoria criminalize the cause and identify the perpetrators.

    About 1 in a 1000 babies is born with ambiguous genitalia or intersex characteristics and with parents’ blessings pediatric surgeons routinely assign a single gender to newborns—with informed consent.

    But South Dakota Republicans don’t want schools to even talk about the causes of gender dysphoria. Why? Because their campaign dollars come from white christianists like the Family Heritage Alliance and the LGBT-bashing Family Research Council and culture war lawsuits raise money for Earth haters like Mrs. Noem and Mr. Deutsch by design.

    What about cochlear implants? Informed consent is the prerogative of parent(s) or legal guardian(s). It varies per state but in most minors cannot give medical consent until 18. Bariatric surgery isn’t even approved for patients under 18, just for instance so ‘gender affirming’ surgery that includes genital mutilation for anyone under the age of consent seems barbaric.

    Puberty blocking medications are neither cheap nor without contraindications.
    According to Mayo, to begin using pubertal blockers, a child must:
    •Show a long-lasting and intense pattern of gender nonconformity or gender dysphoria
    •Have gender dysphoria that began or worsened at the start of puberty
    •Address any psychological, medical or social problems that could interfere with treatment
    •Have entered the early stage of puberty
    •Provide informed consent
    Social contagion like the gender reveal sensation Americans are witnessing currently is a passing fad.

    I submit that a parent who observes chronic gender identity issues early in an offspring and doesn’t seek out a psychologist is doing that child harm and South Dakota’s wretched governor and legislature are hurting parents and children by not funding universal health care.

  6. jerry 2023-08-07 13:53

    Mr. Kurtz, be careful man, Mike Z is starting to use caps like his hero, convict trump…. oh, noooes, what fury has thou wrought…Mike Z is a They, or,,,,

  7. O 2023-08-07 15:27

    MLZ, ” . . . these types of activities. . . ” by which you mean medical procedures conducted by doctors under the approval of parents. Again, parental rights (or state rights or ANY rights) are just a punch line you use before imposing your will on EVERYONE. “these types of activities” don’t need to be “legalized,” the Right has made accepted medical procedures illegal. That’s the point here. This is about taking away rights to continue the marginalization of others. The Right wants small government — just small enough to fit into your doctor’s office.

  8. P. Aitch 2023-08-07 16:18

    BOHICA Mr. Mike Zitterich.
    These items will be shoved up your state’s intestines until it’s so constipated it has no energy or money left to hate anymore.
    – Gun laws will be stricter.
    – Global warming will be codified until beef, pigs, chickens, and lambs disappear.
    – Abortion will be legal under any circumstance.
    – Our federal government will have its power increased by three-fold.
    – Our borders will be open to any world citizen with personal need of economic advancement.
    – K-12 education will be fully assigned to the guidance of teachers and administrators

  9. e platypus onion 2023-08-07 17:45

    Whatever will a Transphobic, alleged Kristian do when their child expresses that he/she was born the wrong gender? Are they gonna love them and help them on their journey or just lock them away in a closet as if they never existed?

    You know it will/has happened. Look at how many magats have gay children that they love and cherish. Of coursr, hardcore magats still blame Democrats for recruiting children to be gay. Maybe we will find out if Zit actually has a heart or needs to go to Oz and get one.

  10. e platypus onion 2023-08-07 17:49

    Your religion won’t protect you and yours from biology. Pious people trird to pray away gay and it did not work so well.

  11. P. Aitch 2023-08-07 19:32

    @ Mr. Onion – The Assistant read your question and spoke up with this answer. Thank you for asking. 🧅

    Transgender kids can experience a range of psychological effects if their parents do not accept them.

    Some common psychological effects that transgender kids may experience due to parental non-acceptance include:

    1. Increased risk of mental health issues: The lack of acceptance and support from parents can contribute to higher levels of anxiety, depression, and other mental health challenges.

    2. Self-esteem and self-worth issues: Rejection from parents can lead to feelings of shame, guilt, and a negative self-image. Transgender kids may struggle with feeling unaccepted and unworthy, affecting their emotional well-being.

    3. Identity confusion and suppression: If parents do not accept their child’s gender identity, the child may face difficulties in understanding and expressing their true self. This can lead to internal conflict, confusion, and suppression of their gender identity, which can negatively impact their overall well-being.

    4. Social isolation and loneliness: Transgender kids may feel a sense of social isolation if their parents do not accept them. They may struggle to find a supportive network of friends or family members, leading to feelings of loneliness and disconnection.

    5. Increased risk of self-harm and suicidal tendencies: Non-acceptance, combined with the societal stigma and discrimination faced by transgender individuals, can increase the risk of self-harm and suicidal thoughts. It is essential to ensure that transgender youth have access to mental health support and professional help.

    It is crucial to provide a safe, accepting, and supportive environment for transgender kids. Families, educational institutions, and communities play a crucial role in fostering understanding, acceptance, and access to resources that promote the well-being of transgender youth.
    – AI GENERATED ~ fully curated & edited by P. Aitch

  12. All Mammal 2023-08-07 20:15

    The legislature in SD goes against what the majority wants all the time. You are the minority, Mr. Zitterich. It may not seem that way due to the fact you said yourself, you cross to the other side of the street when you see someone different coming. But progress is inevitable. You’re fighting a losing battle.

    SD voted two times to uphold women’s medical rights. Undermining that is proof we do not have representatives who believe in democracy. The truth is that SD loves to cling to values of not feeding kids and allowing infant mortality to double for Native babies. Oh, and don’t forget your favorite SD tradition; corruption.

    I totally get why conservatives don’t want progress. It’s the same exact reason the Southern Confederates declared war on the United States. It’s hard to give up your privilege to own slaves. For reals, man. Conservatives believe their destiny or birthright or entitlement to be someone’s master is something worth fighting for. Women belong to men. How can you even say it were not so?

  13. All Mammal 2023-08-07 20:16

    Unless you’re a real conservative, like me haha. Not the Christian Nationalist “conservatives” nowadays.

  14. grudznick 2023-08-07 20:46

    BOHICA, Mr. Zitterich. BOHICA.

    This is the cry from your local government officials, your mail man, and your customers. And they be right.

  15. leslie 2023-08-08 12:31

    Using all Caps is really “all they got”! Woke is woke.

    Expecting lawsuits to quickly solve the trans tragedy in SD and other red states that have stampeded the herd thru the corral posts that Leonard Leo pulled down in the religious cultural wars that the GOP is hoping will snooker the population away from the democratically grounded leading nation, the United States, is difficult.

    It will not be years before Trump (and the nearly entire GOP) goes to trial on conspiracy to obstruct their attempted (and on-going) military coup of our government. Trump is toast. With him will fall all his enablers. Most of us here have been saying this since that awful night Trump was first elected, with Putin’s help.

    Don’t believe me. Believe the dean of the University of Texas law school, and his outspoken compatriot, a fellow constitutional law professor on staff, both seasoned SCOTUS litigators in their own right, deep in the heart of Texas, in Austin (once miserably my home for a summer in the dark air conditioned bars featuring the famous Austin southern music scene, and all things SXSW; that liberal bastion in a surrounding sea of deep, deadly red blood that the Texas state government routinely sheds on behalf of its billionaires and owned politicians.

    Don’t expect ACLU here to duplicate the extraordinary effort it has taken since 2016 to stop the GOP and Trump. A 500 page Muller Report. Two impeachments. A House of Representatives Jan 6 committee. A wounded Department of Justice, FBI, and a compromised SCOTUS (thanks Thune) that have all been systematically degraded, primarily by billionaire wealth (likely laundered in Sx Falls trusts—thanks ALEC and Republican state legislature).

    @ 50:00-55:00

    But its all over for Trump, but the shouting. What a monumental treason the GOP is committing.

  16. e platypus onion 2023-09-03 17:21

    iowa magats in the lege have now pushed legislation where students have to report nicknames and pronouns to the school if they weren’t already registered with such nicknames. Then the parents are notified or some such B.S.

    magats are so engrossed in children’s genitalia it is litte wonder so many of them are kiddie diddler child molesters.

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