NOTE: The original version of this story incorrectly reported how the ACLU planned to challenge if the bill becomes law. Reporter Bob Mercer apologizes for the error.
PIERRE, S.D. (KELO) — A maneuver by Representative Fred Deutsch reminded South Dakota House members Tuesday nothing legislative is truly dead until the final gavel falls in March.
The Florence Republican used joint legislative rule 7-7 known as a smoke-out to give second life to an anti-transgender bill that a House committee had seemingly killed just hours before.
HB 1076 would require sex be one of six facts listed on birth certificates. It further says sex could be changed only within one year of filing, only as a correction, and only through a statement signed by the parents and the physician or whoever else attended the birth.
The ACLU of South Dakota announced a few hours after the smoke-out that the rights group would challenge it in court if the Legislature passes it.
Deutsch had argued that many House members want the legislation. “It is an important social issue of our time,” he told the full House on Tuesday afternoon.
Representative Erin Healy, a Sioux Falls Democrat, spoke against the smoke-out. She served on the House Health and Human Services Committee that had defeated it 7-6 that morning. “This bill got a fair hearing today,” Healy said. She asked for House members to respect the committee process.
That brought a response from the committee chair, Representative Kevin Jensen, a Canton Republican who supports the proposed restriction. Jensen said the rule allows a bill’s sponsor to request a smoke-out. “I honor that rule just as much as the committee process,” he said.
The smoke-out rule requires that at least one-third of the chamber’s members — 24 in the House — show their support. House Speaker Spencer Gosch, a Glenham Republican, had supporters stand. After a silent count he announced Deutsch’s motion was supported.
Jensen as chair delivered the bill to the House later in the afternoon without recommendation. The next step for Deutsch is convincing a majority of the 70 representatives that it should be put on the House calendar for debate. Only after that would the bill itself face an actual yes-or-no vote for passage.
Deutsch has been the center of past legislative fights over gender and sex. “I come to you today in humility, not hate,” he said as the start of the hearing.
Roger Tellinghuisen of Rapid City, a long-time lobbyist who served 1987 through 1990 as Attorney General for South Dakota, read a letter of opposition from Human Rights Campaign. Then he gave some historical perspective.
“We see one of these types of bills every single year. Every single year we see something that’s focused at some of the most marginalized people in our society. They’re all, we’re all, God’s children, but yet to subject them to this type of discrimination, in my opinion, is just not fair. It’s unconscionable,” Tellinghuisen said.
Deutsch said he is trying to give South Dakota judges a law to follow. He said 16 people have asked judges to grant changes of sex on their birth certificates.
“The problem is some judges have ordered a sex designation on a birth certificate to be changed, either from male to female or female to male, while other judges have denied the request, noting that they don’t have the authority,” Deutsch said.
“Taking hormones doesn’t change a person’s sex, nor does removing your genitals. The reality is, sex cannot be changed. It’s immutable. It’s unchangeable; it’s permanent. It’s in our cells; it’s even in our very DNA,” Deutsch said.
A young adult who identified as Seymour Otterman of Sioux Falls spoke against Deutsch’s argument that sex doesn’t change.
“Unless you have had a test done, you do not know what your chromosomes are,” Otterman said. “When a cis-gender woman goes through menopause, or has her uterus or breasts removed, her womanhood is not revoked. So why do we force transgender women to jump through these impossible hoops that many cis-women can’t even jump through?”
Otterman continued, “There is no other group of people who have to change the gender marker on their birth certificate. And that alone is discriminatory. To remove us from even having that option is to make a mockery of us.”