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.”?
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.?
