A bill under review at the state capitol spotlights the shifting societal understandings of gender and sexual identity and the law. The proposal would refuse transgender people the right to change their sexual identity on their birth certificate.
The prime sponsor of the bill says judges are ruling inconsistently on such requests.
Critics call it discriminatory and say the bill targets the state’s transgender community.
The controversial bill was nearly defeated.
Seymour Otterman from Sioux Falls was relieved. They’d driven three hours to testify against the proposal.
“We are just trying to get by in a society that puts us down at every opportunity,” Otterman says. “These bills just add on to the discrimination that we already face.”
But hours later, the prime sponsor, Republican Representative Fred Deutsch, used a legislative maneuver to bring his bill to the House floor.
“Many members have expressed to me the desire to have debate on it. It’s an important social issue of our time,” Deutsch says.
Deutsch needed 24 other lawmakers to bring the bill back for consideration. There were just enough House Republicans to do that.
The next day the House of Representatives passed the bill.
Representative Fred Deutsch has a history of legislation that targets the transgender community in South Dakota.
Deutsch says this bill is designed to clarify a legal issue in the South Dakota courts. He says there have been inconsistent rulings on whether a person can change the ‘sex’ marker on their birth certificate.
“It’s not a hate bill,” Deutsch says. “I approach this process with great humility and reverence for the process.”
Since 2015, 14 South Dakotans have sought to change the sexual identification on their birth certificate. Records from the state’s judicial system say of those fourteen cases, two were denied.
In one of those filings, 2nd Circuit Judge Douglas Hoffman of Minnehaha County, ruled South Dakota law did not allow him to make that change.
Deutsch wants to make the law clear and consistent - that transgender people cannot change their birth certificate.
“Sex develops very early when the gametes meet in the embryologic process and it’s unchangeable,” Deutsch says. “Sex cannot be changed.”
Some House Republicans agree. Representative Scott Odenbach, of Lawrence County, says state law should not allow changes to a birth certificate.
“To allow folks to go in and just make this kind of change really makes, in my opinion, the courts and our government complicit in a lie.”
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Several House Republicans say legal documents should be based on objective truth. Some say that considering fluid gender identities for transgender people will lead to chaos.
“The right thing is to call a duck and duck, black black,” Representative Carl Perry, of Brown County, says. “If your sex is male, then you need to say my sex is male.”
Critics of the bill say the science of sex and gender is not so definitive.
“There’s not a clear understanding in the state legislature about how sex and gender are related and what we know when we know,” says Rev. Dr. Anne Dilenschneider of Sioux Falls. She’s been working with transgender youth and adults since 1992. “Just on a basis of confusion of terms this bill is incredibly flawed.”
The bill defines ‘sex’ as the biological and physiological characteristics genetically determined at conception and generally recognizable at birth. Dilenschneider says fetal development is more complex.
“And the first wash of hormones that first trimester determines the body’s external sex,” Dilenschneider says. “But the second wash of hormones in the second trimester determines the brain’s gender. They don’t happen at the same time and they don’t always match. We can’t see that when a child is born. So, just like with a child who is intersex, who we can’t tell on the outside, we are actually presuming sex on everyone who is born. We need to wait and see.”
Deutsch’s bill codifies what is referred to as ‘gender binary,’ the notion that there are only two sexes and genders—male and female.
Deutsch says preventing changes to birth certificates is important because such vital records must be maintained.
“We know there’s differences between men and women anatomically and physiologically,” Deutsch says. “We know that disease effects men and women different. For example, the COVID affects men and women different. So, for a lot of reasons it’s important that accuracy is maintained in our vital records. That’s all it does, is maintain accuracy.”
But birth certificates aren’t used for that purpose. Michaela Seiber is an adjunct professor and researcher at the University of South Dakota. She has a master’s in public health.
Seiber says researchers look to other documents when they track disease and compile data.
“Public health people, department of health, they’ll use medical records. They’ll use surveys, people will fill out surveys,” Seiber says. “Birth certificates are only useful for that first segment of life when we’re tracking how many births we have in a year.”
Seiber is a member of the Transformation Project, which advocates on behalf of transgender South Dakotans. She says public health data benefits from understanding someone’s gender identity when looking at disease.
The ACLU of South Dakota says it will sue the state if the bill becomes law.
It says the bill is discriminatory and violates the equal protection clause and the first amendment.
The bill has already had a first reading in the state senate and is assigned to the Health and Human Services committee. It’s not clear what kind of support among Senate Republicans there is for the bill.