A bill restricting access to bathrooms and locker rooms for transgender students, potentially putting school districts in a legal quandary, made its way to the governor’s desk recently.
House Bill 1008, which separates bathrooms, locker rooms and shower rooms in public schools based on the biological sex of a student, narrowly passed the Senate following a vote of 20-15.
The initial version of the bill included a hold harmless clause for schools, but the clause was amended out in the House committee hearing following objection from the South Dakota Attorney General’s office.
An amendment introduced on the Senate floor called for the reintroduction of the hold harmless, which called for the A.G.’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.
“If we’re going to pass (the law), let’s tell the school districts we’re going to work with them,” Sen. Bernie Hunhoff said.
The amendment was ultimately defeated.
In testimony from the bill’s House committee hearing, the state’s attorney general’s office cited opposition to the hold harmless section because it could set precedent in having the A.G. represent a public school district in a lawsuit.
However, as noted previously and by Sen. Hunhoff there is current statute in South Dakota’s codified laws that 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.
An offer for pro-bono legal work from two independent organizations was cited, but an attorney from one of the organizations, Matt Sharp, noted during the Senate committee hearing the offer would “not cover damages” a school district would incur from a potential lawsuit.
ASBSD Executive Director Wade Pogany said during a committee hearing on the bill schools would be more comfortable collaborating with the state on the matter.
“I can’t imagine (the organizations) would pull the rug out from under us,” Sen. Brock Greenfield, a sponsor of the bill, said.