PIERRE | A South Dakota Senate panel on Thursday voted to leave in place an activities association policy that lets transgender students play on the athletic team that matches their gender identity.
The Senate Education Committee voted 5-2 against a bill that would have voided the policy. It would have required a student's sex to be determined by their birth certificate or a South Dakota High School Activities Association physical exam form.
Association Executive Director Dan Swartos said the change wouldn't be fair to schools or transgender youth. Family Heritage Alliance Action Executive Director Norman Woods called the vote "disappointing," saying supporters don't view the bill as discriminatory.
Libby Skarin, policy director at the American Civil Liberties Union of South Dakota, said the group opposed the measure because it harms transgender students and they say it would violate Title IX in federal law and the U.S. Constitution's equal protection clause.
"The more our leaders get to know the stories of these families and these kids, the more they realize the real impact of this kind of legislation," Skarin said. "They see the pain and the turmoil that it causes."
But Republican Sen. Jim Bolin, the sponsor, said the legislation was necessary to ensure fair competition.
"This bill is brought forward to elevate the concept of fair competition in sex-segregated sports to a higher level and to keep that goal as paramount," Bolin said. "All other goals and agendas should be subservient to that perspective."
The association's 2015 policy requires a student and parent to notify their school that the student wants to play on the sports team that matches their gender identity.
The school submits an application and documentation to the association for review by an independent hearing officer who must be a licensed attorney and a member of the State Bar of South Dakota. The student or the student's school can appeal the hearing officer's decision to the association's board of directors for a final decision. The rules say that gender identity can't be used to gain an unfair competitive advantage.
Swartos said the association in part opposed the measure because it wouldn't have held harmless the association or member schools in resulting litigation. A "very small number" of transgender students participate with the exemption, he said.
At least two dozen other states have such policies, according to the ACLU of South Dakota. The group says South Dakota's Legislature would have been the first to override one.
Similar bills to end the policy failed in the 2015 and 2016 sessions.