South Dakota governor cites limited government in veto of transgender bathroom bill

posted at 6:01 pm on March 2, 2016 by Taylor Millard

Slightly lost in yesterday’s Super Tuesday is a decision by South Dakota Governor Dennis Daugaard’s decision to veto a bill which would have required transgender students to use the bathroom of their birth sex. The Left heaped praise after praise on Daugaard with Mic’s Julie Zeilinger calling the proposal a “transphobic bathroom bill,” Think Progress opined the bill was “restrictive,” and the Human Rights Campaign decried it as an attack on transgender kids. The Right seemed equally in shock with The Washington Times calling Daugaard’s veto shocking for conservatives, while The Daily Signal blamed big business and special interests for Daugaard’s decision. The interesting thing is only a few people have bothered to look into how Daugaard used the idea of limited government, as a way to justify his veto.

Daugaard’s main argument in favor of limited government specifically analyzes the notion of local control. His veto message to South Dakota’s House of Representatives reveals his concerns about whether the state government should have a say in what local school district do with their bathrooms (emphasis mine).

This bill seeks to impose statewide standards on “every restroom, locker room, and shower room located in a public elementary or secondary school.”  It removes the ability of local school districts to determine the most appropriate accommodations for their individual students and replaces that flexibility with a state mandate.

If and when these rare situations arise, I believe local school officials are best positioned to address them. Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.

It’s an interesting tactic to take, and one which actually has merit. Individual districts do know their students best because the kids are in their schools. So it makes sense for the district officials to decide what to do when Little Jimmy decides to become Little Jannie (or vice versa) and how that might affect other students in the school. The school can then decide whether to let a transgender student into the opposite locker room, set up a special locker room, or tell the student “no, you’re going to be in the locker room of your birth sex.” Individual district policy also gives parents a better chance to weigh in and share their concerns with officials versus just lobbying one representative who may or may not really care. It also gives parents the chance to vote out school board members who put in place a policy they don’t agree with.

Not everyone agrees with Daugaard on this argument. Ryan Anderson’s piece at The Daily Signal suggests Daugaard is just fine with boys in girls’ locker rooms.

Remarkably, the governor justified his veto by claiming the bill would undermine local control and “impose statewide standards.” Nothing could be further from the truth. The bill respected local control while ruling out one, and only one, bad option: boys in girls’ locker rooms and bathrooms.

If this bill undermined local control, it can only be because Daugaard thinks that local schools should be able to allow boys in girls’ bathrooms. Or, to put it another way, he thinks that local schools should be able to require girls to undress in front of, or be exposed to, boys who identify as girls in showers and locker rooms as a condition of going to school…

The nation is primed for yet another clash in the culture war—this time over school bathroom policy. The South Dakota legislature gave the entire United States an example of principled leadership on how to defuse controversy and craft public policy that creates good outcomes for everyone.

Anderson has a very good point, because the bill is pretty balanced at trying to be a “win-win” for all sides. The only question is whether or not it should be the government which rules on what school districts can or can’t do. I know states are the ones which set academic standards, but should they be the ones setting a school bathroom policy? I felt the same way when Houston passed HERO because I didn’t like government telling businesses what they had to do. Scott Shackford at Reason thinks everyone needs to take a step back and reason maybe the state shouldn’t be used as a weapon against the opposition.

But I do worry that argument from some transgender activists and allies is less about being left alone to express their gender as they desire, as every human should be permitted, and more about a demand that everybody around them celebrate and participate in the journey and attempting to use the state as a tool to bludgeon opponents into submission. I support obligating schools, prisons, and other government agencies accommodate transgender people’s journey because it’s the government, they force us to interact with them, they take transgender people’s money just like everybody else’s, and they can damn well respect their gender expression.

Everything else is a matter of cultural debate and negotiation, and right now it feels awfully shrill and entrenched. Everybody wants to use the law to fix it. Such a method therefore requires a constant fight for control over the levers of power. Trying to shame the “bathroom panic” people as bigots seems to be a poor strategy, particularly given the big victory in Houston in fighting its pro-transgender ordinance.

He’s got a good point because it is alarming to see people run to the government to “set things right.” The government (federal/state/local) was set up to be a night watchman against those who would inflict harm on others, and not lording over everyone, whether it be who gets allowed into bathrooms or businesses and who sleeps with who. I’m also not sure the government should be able to say which schools students go to because that’s best left up to parents. Daugaard’s veto may seem as bowing to special interests, but it should also cause people to stop and consider who they want making decisions about schools: the state or the individual districts? If the Right really is so concerned with “local control,” is this veto really a bad thing?

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