South Dakota Prepares To Vote On A Transphobic Documentation Bill

Despite the rights that President Biden has brought to the country in his new position, a number of anti-LGBTQ+ bills are pending consideration in legislatures across the country. On Tuesday, a bill will be presented in the the South Dakota House that, if passed into law, would prevent trans and intersex people from changing their birth certificates.

House Bill 1076 calls being trans a “subjective identification of sex” and asserts that allowing individuals to alter “vital records” such as birth certificates — which the bill asserts are necessary to access risks and public health trends, conduct criminal investigations, and assist “persons in determining their citizenship, biological lineage, or susceptibility to genetic disorders” — would undermine the government’s functioning. The bill will be heard by the state on Tuesday morning.

“Allowing persons to have their vital records, including birth certificates, altered, in accordance with their subjective identification or feelings about their sex undermines the government’s compelling interest in maintaining accurate vital records,” reads the bill.

Although the bill is overwhelmingly transphobic, it seems to have anticipated push-back and acknowledges that the creation of discriminatory laws is prohibited by the Equal Protection Clause of the 14th Amendment. It goes on to assert that banning trans people from being able to change their legal gender marker is a “facially neutral law of general applicability, such as a biology-based definition of sex that has been consistently applied since the founding of this nation.”

HB 1076 also specifically targets intersex people, calling their identity a “disorder” — which is harmful and incorrect — and adding that this clause could “thereafter be amended, at any time, based on genetic analysis and an evaluation of the person’s naturally occurring internal and external reproductive anatomy.”

“If a person is born with a physiological disorder that renders the person’s biological sex not identifiable at birth as male or female, based upon externally observable reproductive anatomy, the attending physician shall make a presumptive determination of the person’s sex,” the bill reads.

This South Dakota bill is likely not to pass, considering it goes against the direct opinion of both the Supreme Court and the current President. In the landmark ruling Bostock vs. Clayton County decided last summer, SCOTUS determined that “sex” as defined within Title VII of the Civil Rights Act does include the LGBTQ+ community. President Biden has also made his agreement clear by signing an executive order last week that requires that the definition of “sex” as defined by the Supreme Court must be applied to any federal anti-discrimination laws.

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