PIERRE S.D. — A South Dakota bill preventing persons from updating sex designation on a birth certificate — a simple courthouse process transgender advocates say is a basic human right — was brought back to life on Tuesday, Jan. 26, by a vote of the full House after being tabled by a health committee.
The use of a so-called "smoke out" legislative maneuver, invoking Joint Rule 7-7, did not receive an electronically counted vote, but House Speaker Spencer Gosch ruled the requisite two-dozen members, or one-third of the body, had stood signaling their support for Rep. Fred Deutsch's motion. From the house gallery, Forum News Service counted at least 27 Republicans who stood to rescue the bill during the smoke out.
Earlier in the day, the House Health and Services Committee voted 7-6 to move House Bill 1076 to the 41st day, parlance in Pierre, S.D., seemingly killing the bill. Five Republicans joined two Democrats on the committee to kill the bill.
But hours later in the House chamber, Deutsch, a Codington County Republican and prime sponsor of the bill, rose to ask that the full body hear what a bill on what he termed an "important social issue of our time."
Deutsch's rhetoric was noted by Rep. Jennifer Keintz, a Marshall County Democrat, who said the bill's prime sponsor had presented the ban on correcting birth certificates as "an issue of documents" and not as a social issue.
During committee testimony on Tuesday, HB 1076, proponents, including the South Dakota Catholic Conference, said they were motivated by the need for "accurate data" in state records.
"To be of the male sex or the female sex proceeds from one's body," said Christopher Motz, Executive Director for the Catholic Conference. "When it comes to birth certificates, the state has no interest in your inner experience."
Bill supporter, Norman Woods, executive director of Rapid City nonprofit Family Heritage Alliance, alluded to divisive fights in the past at the Statehouse, saying those fights erupted over "words on a page."
"We're not even talking about words on a page (in this debate)," said Woods. "We're talking about a couple letters on a simple document."
For many at Tuesday's hearing or attending remotely, the denotation of "m" and "f" drew impassioned pleas.
A range of bill opponents said the evolving understanding of gender and sexuality — typified by the U.S. Supreme Court's decision this summer to prohibit discrimination against transgender persons —creates a need to protect legal rights for LGBTQ persons.
The ability to change a birth certificate's sex designation "goes a long way to helping me feel a little more safe in an often unkind world," said Dylan Daniels, a transgender advocate who identifies as "two-spirit."
Kooper Caraway, president of the South Dakota Federation of Labor, pointed to previous fights over transgender legislation in Pierre, arguing that enacting the bill would drive away NCAA sporting events and other business investments his members rely on for work.
Proponents are "waxing poetically about whether to change an 'f' to an 'm' or an 'm' to an 'f' and this is embarrassing," said Caraway.
Former State Attorney General Roger Tellinghuisen, appearing on behalf of Washington, D.C.-based Human Rights Campaign, argued that, if enacted, the bill would likely be struck down in court.
"I've been around this process for a long time ... and I don't recall seeing legislation that starts out with two-and-a-half pages with legislative findings intending to justify and cover-up what is clearly an anti-transgender bill," said Tellinghuisen.
Throughout Tuesday's debate, proponents and opponents appeared to be arguing past each other, invoking separate understandings of transgender identity.
"Should the birth certificate be accurate?" Rep. Carl Perry, an Aberdeen Republican, asked Tellinghuisen.
"Yes," responded Tellinghuisen.
The bill's prime sponsor, Deutsch, has said a schism exists in the court system, justifying his bill. He passed out a 2018 court filing prior to Tuesday's hearing showing a ruling from Sioux Falls circuit judge Douglas E. Hoffman denying a request to change the sex designation on an individual's birth certificate.
Officials with the state's judicial system disclosed to SDPB News that in three years, only 10 individuals have sought a court order to change a birth certificate in South Dakota.
Rep. Erin Healy, a Sioux Falls Democrat, questioned Deutsch if judges had pushed him to introduce this bill, or if he had gone looking for a problem that didn't exist.
"I don't reach out to judges on anything," said Deutsch. "I reach out to legislators."
Later, Healy reiterated that "this data (number of court filings) is nowhere close to being statistically significant."
Ultimately, the committee rejected the bill on a 7-6 vote and voted again along the same lines to send the bill to the 41st day. The "smoke out," however, revives the bill for debate and vote by the full house in the coming days.
Tuesday morning, standing outside the Statehouse in near-single-digit temperatures, activists waved "pride" flags and held homemade signs to rally support before the bill.
"It is really important for so many trans people to be able to correct what ... is incorrect," said Lydia Johns, a college student who made the trip from Rapid City to Pierre. "It also helps when going through legal or medical process. Sometimes an incorrect gender marker can lead to confusion and discrimination."
South Dakotans wishing to amend birth records, including gender, must submit an application, a photo ID, a court order and small fee.
Similar bills have been struck down by federal judges in Idaho and Ohio. The West Virginia Supreme Court upheld a county judge's denial of a person requesting to change a sex marker on a birth certificate.
Contact Vondracek at firstname.lastname@example.org, or follow him on Twitter: @ChrisVondracek.