An opponent of the state’s ban on gender-affirming health care for transgender children holds a sign during an event at Van Eps Park in downtown Sioux Falls on July 28, 2023. The protesters called for state lawmakers to repeal the ban. (Joshua Haiar/South Dakota Searchlight)
Twenty-one states have implemented laws or policies banning gender-affirming care for transgender children. Nearly half of the laws have been challenged in court, but not South Dakota’s.
That’s partly because a similar ban was already blocked by a federal judge in Arkansas earlier this summer. The American Civil Liberties Union challenged the Arkansas law in May 2021 (before South Dakota’s law was passed), and a judge’s June 2023 decision said the ban violates constitutional rights of transgender youth, their parents and medical providers.
Specifically, the judge ruled Arkansas’ “Save Adolescents From Experimentation Act” violates the U.S. Constitution’s equal protection clause, due process clause and First Amendment free-speech protections.
Arkansas’ attorney general said he’d appeal the decision.
Legal issues explained
South Dakota and Arkansas are both part of the U.S. Court of Appeals’ 8th Circuit. If the 8th Circuit affirms the lower court’s decision, it would set a precedent for South Dakota federal courts, said Stephanie Amiotte, legal director for the ACLU of North Dakota, South Dakota and Wyoming.
The ACLU is “analyzing whether a challenge to South Dakota’s ban would be effective at this time,” she added.
“Our goal is to ensure that if or when the ACLU of South Dakota files a lawsuit challenging the gender-affirming care ban, we can do so victoriously for all trans families and for all people in South Dakota who are concerned about government overreach, safety of their children and erosion of their constitutional rights,” Amiotte said in an emailed statement.
That “wait and see” approach is “understandable,” said Lisa Hager, an associate professor of political science at South Dakota State University. She said litigation is expensive and time-consuming, and could be unnecessary with a related case possibly on a path to the U.S. Supreme Court.
“In the meantime, similar cases are likely going to be playing out in other courts,” Hager said in an email.
Since over a third of U.S. states have passed gender-affirming care bans and nearly half of those laws are facing legal challenges, courts could split on their decisions.
Litigants who lose in the circuit and appellate courts may petition the U.S. Supreme Court to hear the cases.
“Depending on what the Supreme Court’s decision is, then that would impact South Dakota’s gender-affirming care law,” Hager said.
“However,” she continued, “the Supreme Court does not have to take up any of the cases.” That’s likely to happen if lower courts disagree, “but there’s no guarantee.”
Hager said gender-affirming care bans could show up on the U.S. Supreme Court’s agenda in fall 2024 — if the court takes up any cases.
Other challenges to gender-affirming care bans across the country concern state constitutions instead of the federal Constitution, Amiotte said. Missouri and Montana’s lawsuits, for example, were introduced in state court.
“The ACLU of South Dakota is considering all possibilities to help transgender families in the state,” Amiotte said. “The state constitution and other South Dakota statutes could form a basis for a lawsuit, too, if one is filed.”
South Dakota’s law
South Dakota’s ban passed the Legislature in February with nearly 86% of legislators voting for the bill, and Gov. Kristi Noem signed the bill into law saying it is “protecting kids from harmful, permanent medical procedures.” It bans health care professionals who treat transgender children from prescribing drugs such as puberty blockers and performing some types of surgeries. Health care providers could lose their license if caught providing the banned services and could also be held liable in lawsuits.
Medical experts say gender-affirming surgeries for minors are rare, drugs are only administered after years of therapy to analyze the condition of the child, and receiving treatment as a minor through puberty blockers and hormone therapy could prevent invasive procedures that transgender people might otherwise undergo as adults.
The bill became law on July 1. A provision allows children already receiving care to receive systematically reduced treatment until 2024.
A fraction of South Dakotans under the age of 18 identify as transgender. That leaves those individuals to seek care out of state – requiring time off from work and school, travel costs and other financial burdens, such as paying for treatment outside of insurance networks.
State Attorney General Marty Jackley signed a letter of support along with 18 other attorneys general last month, urging the Biden administration to withdraw a proposed rule shielding the medical records of people seeking abortions or gender-affirming care across state lines.
Elizabeth Broekemeier, a speaker at the “We Won’t Go Back” rally held in downtown Sioux Falls last week and a mother of a transgender child, said her son is seeking gender-affirming care in Minnesota. He’s also planning to leave the state as soon as he turns 18 years old.
“My son is worried constantly that somebody is going to attack him, that he might be outed in some way,” Broekemeier said. “He doesn’t want to live in South Dakota. He constantly asks if we can move to Minnesota. He doesn’t feel like he’s welcome here.”
Legislative and electoral options
Instead of waiting on a lawsuit or a U.S. Supreme Court decision, some South Dakotans opposed to the state’s law are considering two other options in the short term: pressuring the Legislature to repeal it, or introducing a ballot referendum.
Given the lack of education surrounding transgender health care among South Dakota voters, protesters attending the rally questioned if a ballot measure could be successful.
“People of course don’t want to hurt children,” said Jessica Meyers, president of the Transformation Project Board. “But they don’t realize that trans individuals and kids in the LGBT community have an 80% higher chance of self harm than regular kiddos.”
Some protesters are hoping to pressure lawmakers to change their positions on the law and repeal it during the 2024 legislative session, which begins in January. Such a move would “undo the harm the new law will inevitably cause for trans South Dakotans – and avoid costly taxpayer-funded litigation, like in Arkansas,” said Samantha Chapman, ACLU of South Dakota advocacy manager.
Rep. Kameron Nelson, D-Sioux Falls, was a vocal opponent of House Bill 1080 during this year’s legislative session. He plans to introduce legislation to repeal the law.
“We’ll be very vocal this next legislative session and demand that my colleagues consider a repeal of HB 1080,” Nelson told South Dakota Searchlight. “As far as a referendum to the people, if (legislators) take no action then, of course, we’re going to consider all of our options.”
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