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Transgender Bathroom Laws in Public Schools: A National Overview

By Ephrat Livni, Esq. | Last updated on

South Dakota this week narrowly escaped becoming the first state in the nation to pass a law forcing transgender students to use bathrooms and locker rooms of their birth sex. The bill would have forced students use facilities associated with the gender they do not identify with, making them prisoners of their biology.

The governor of South Dakota, Republican Dennis Daugaard, this week vetoed the bill, saying it "does not address any pressing issue" and that the decision was best left to local school officials, according to Fox News. The veto may indeed have saved South Dakota some headaches, particularly as other states head in the opposite direction.

Nationwide Survey

The South Dakota bill dictating bathroom use in schools for transgender students would have been a first in the country. Governor Daugaard initially expressed support for the bill but after he heard from the American Civil Liberties Union and the Human Rights Campaign, who say it is discriminatory and will prompt legal action, he vetoed.

Daugaard noted that signing the bill could create costly liability issues for schools and the state. Although it's unclear whether he was influenced by this, Daugaard was also contacted by former Olympian and reality TV star Caitlin Jenner, who is now a transgender rights activist.

Daugaard's decision to veto the bill seems wise in light of California's 2013 law to allow transgender students to participate in activities and use facilities according to their gender identity, not their biological gender. Similarly in Colorado in 2013, the Colorado Rights Division ruled that school districts could not discriminate against transgender students by dictating bathroom use.

Local School Districts

Although states have mostly stayed silent on the issue for now, local school districts have been formulating approaches to handling transgender student issues. New York City schools for example have quite extensive guidance on how to support transgender students from the NYC Department of Education.

The NYC school district explains how to keep records that are clear from an administrative perspective and also reflect the student's own gender identification. Most notably in light of the South Dakota decision not to pass a bill forcing transgender students to use biological gender bathrooms, the NYC school authorities write, "A transgender student should not be required to use a locker room or restroom that conflicts with the student's gender identity."

Experiencing Discrimination?

If you or someone you know is experiencing discrimination in school or at any other institution, talk to a lawyer. Many attorneys consult for free or a minimal fee and will be happy to discuss your case.

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