Just in time for Valentine’s Day, social conservative lawmakers are passing a flurry of hateful bills targeting LGBT Americans and transgender students. West Virginia legislators want to ensure that “sincerely held” bigotry is perfectly legal. Kentucky is weighing “separate but equal” designer marriage licenses for gays. And in Tennessee, lawmakers want to shield their therapists and marriage counselors from the unseemly details of same-sex love. Oh, the horrors!
Of course, we did see a bright spot in Washington state, where lawmakers narrowly defeated an effort to overturn a policy allowing transgender use of public restrooms and locker rooms consistent with their gender identity. And in Oklahoma, nothing was sweeter than seeing virulently anti-LGBT Rep. Sally Kern pull from consideration her bill prohibiting educators and counselors from providing information on human sexuality after she realized it could put anti-abortion activists at risk. (Technically that happened last week, but I just couldn’t leave it out.)
The bills are coming and going quicker than any sane person can track, but there does seem to be one state that’s worthy of continued scrutiny: South Dakota. The GOP-led South Dakota House has now passed three anti-LGBT bills with the paw prints of the right-wing legal group Alliance Defending Freedom all over them.
The targeting of LGBT rights by a national conservative group is nothing new, but Arizona-based ADF has been devoting the type of time and energy to the effort that makes one wonder whether the group is working toward not just an end there, but a beginning—perhaps a model that they can replicate across the country.
Specifically, two of the bills—HB 1008 and HB 1112—target transgender students, seeking to block them from using restrooms and participating in sports in accordance with their gender identity.
Transgender equity, particularly where students are concerned, is still fertile ground for setting trends at this early stage of its consideration. And the conservative groups aligned with ADF seem all too eager to do just that.
The Heritage Foundation boasted Tuesday, “this state could soon become first to stop transgender students from using opposite-sex bathrooms.” On hand to testify Wednesday morning was the Family Heritage Alliance (FHA), the South Dakota state affiliate of the anti-LGBT Family Research Council.
And though it might be a first, it may not be the only “first” they’re angling for. There’s three applicable cases so far related to transgender student rights (Downey Unified, Arcadia Unified, and Township High School District 211)—all settled administratively through the Department of Education’s Office of Civil Rights in favor of the transgender students. That’s a trajectory social conservatives may be looking to interrupt.
It's not just that ADF legal counsel Matt Sharp has testified on behalf of the bills. The group has also offered to provide pro bono legal assistance to any South Dakota school district that runs afoul of federal guidelines regarding what qualifies as sex discrimination under Title IX.
The notion of public school districts being represented by a conservative Christian organization for thwarting the U.S. Department of Justice apparently didn’t cause concern, since the bathroom bill cruised through the House by a 58-10 vote and is headed to the Senate.
As the ACLU’s South Dakota policy director Libby Skarin told me: “If they are defending the state, just whose interests will they be representing?” Skarin noted how strange it would be, for instance, if the ACLU signed up to do pro bono legal cases on behalf of the state.
But now we've got an organization that views itself as a “legal ministry” and longs to “recover the robust Christendomic theology of the 3rd, 4th, and 5th centuries” offering to defend schools that violate U.S. law.
And by the way, the group has offered to do the same for South Dakota’s HB 1107—a “license to discriminate” bill that would allow taxpayer funded contractors and social service providers to turn away LGBT people.
South Dakota is among a number of states that don’t often attract a lot of national headlines. It doesn’t have a particularly diverse business community in the vein of say, Indiana, that’s likely to take a stand against anti-LGBT bills. The state government is basically owned by Republicans. And there’s no shortage of right-wing groups on the ground with which to partner. That makes the state ripe for a group like Alliance Defending Freedom to use as a petri dish, either for first-of-its-kind legislation or even precedent-setting legal cases.
