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'Visual inspection' could be part of state law to determine gender identity

PIERRE | A proposal by a state lawmaker could require that visual inspection be used as part of a process to officially determine a person's gender in South Dakota, including for high school athletes.

The battle over how to officially determine someone's gender arises from a controversy over whether transgender high school students can declare their own gender when participating in sports.

A high school athletic group enacted a policy last year that allows students to decide for themselves which gender group they will compete with. But some lawmakers are unhappy with that concept.

So, the issue appears poised to carry into the 2016 legislative session, and one possible approach would be a law that may remove a person's right to decide for themselves.

The Legislature’s interim committee dealt with the issue Thursday and requested a draft of a potential state law.

The proposal from Rep. Roger Hunt, R-Brandon, would rely on official birth certificates and visual inspections for determining gender rather than allowing people to decide and declare their gender on their own.

He said gender is determined at conception and the transgender debate is riding the gay marriage wave.

“This is South Dakota. We haven’t adopted the East Coast culture. We haven’t adopted the West Coast culture. We maintain our own culture,” Hunt said.

The committee vote was 6-5. The panel spent several hours considering again the policy set last year by the South Dakota High School Activities Association board of directors.

The policy allows transgender students to participate in athletics as members of the opposite sex.

The association’s board is reworking pieces of the policy after legislators repeatedly attempted to overturn it last winter, winning in the House of Representatives each time but then failing in the Senate.

The board meets next week. The legislative committee should wait until after the board finishes its efforts, said Sen. Larry Tidemann, R-Brookings. “For that reason we may be putting the cart before the horse,” he said.

Sen. Bill Van Gerpen, R-Tyndall, said the Legislature set policies on substance abuse and concussions for the association in previous years and should determine the gender policy too.

“This definitely is a minority population we’re addressing,” Rep. Kris Langer, R-Dell Rapids, said. “It’s such a small group to be legislating. No policy, or rescinding this, is the best.”

Sen. Craig Tieszen, R-Rapid City, said a survey found that four in five schools preferred the association to take the lead on the policy. Tieszen said he trusts people in the schools to work this out.

“I believe they have the best interest of children as a whole in their hearts,” Tieszen said.

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