An amended version of a bill restricting access to bathrooms and locker rooms for transgender students, which could have unknown legal ramifications for public schools, passed the House.
House Bill 1008, which separates bathrooms, locker rooms and shower rooms in public schools based on the biological sex of a student, passed the House State Affairs committee on 10-3 vote on Monday (1/25) and Representatives sent it over to the Senate following a 58-10 vote on Wednesday (1/27)
HB 1008 was amended to remove a hold harmless clause for schools from the original version in committee.
“We would respect the state in helping (schools) with this,” ASBSD Executive Director Wade Pogany testified during the bill’s committee hearing. ASBSD is cautiously monitoring the bill for its potential legal ramifications for schools.
The clause removed from HB 1008 called for the South Dakota Attorney General’s office to represent a public school district, should it face a lawsuit while complying with the state law, and applied any financial repercussions incurred by the district from the lawsuit to the State of South Dakota.
Jeromy Pankratz, a representative of the attorney general’s office, noted his office would have opposed the bill had the hold harmless section not been removed because it could “set some precedent that does not yet exist” in having the state’s attorney general represent a public school district in a lawsuit.
A current statute in South Dakota’s codified laws cites the attorney general would represent a school district at no cost should it be sued for complying with state statute related to use of textbooks.
“If this (hold harmless clause) is not the best method to protect the schools I ask that we seek other alternatives,” Pogany requested.
Pogany noted the possibility of this matter being added as a clause to the extraordinary litigation fund, which currently covers legal costs associated with defending South Dakota statutes that regulate or proscribe abortion or contraception.
Supporters of HB 1008, including bill sponsor Rep. Fred Deutsch, said two independent law firms have offered pro-bono legal work for schools, in the event they are sued for complying with the state law.
A representative from one of the law firms stated his organization would cover their legal expenses, but would not subsidize any settlement fees a school district incurs.
Pogany expressed his gratitude in the offer from the organizations. He added the schools would be more comfortable collaborating with the state on the matter.
“There are so many variables…in what that representation would mean and where that could go,” Pogany said. “Our confidence level would be higher if the state would act as a partner with (schools).”
Speaking against the bill on the House floor, Rep. Spencer Hawley said the proposed legislation sets school districts up to face legal action without protection.
“There is no way that I’m going to pass something…that I know is going to go to court,” Rep. Hawley said. “That’s what we’re doing here.”
HB 1008 now moves to the Senate.
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