'We were hoping it'd get overlooked': Record changes for transgender people in SD requires public notice
As debate swirls around HB 1217, a measure to ensure "fairness in women's sports" in South Dakota, some transgender families in the state say the process to change vital records in court can be costly, slow-moving, and published in a local newspaper.
PIERRE, S.D. — The law requires a newspaper notice. Once-a-week, for four weeks.
So this past December, Dianne Ereth and her transgender child, Perci, newly 18, went to to the Black Hills Pioneer in Spearfish, South Dakota, to publicly announce they were headed to court for a name and gender marker change to a birth certificate.
"'I think these are ridiculous,'" Dianne said the newspaper staffer told them. "I can see if you're a 40-year-old person and you're running away? But you're 18," the staffer continued. "What are you running from?"
Perci, who lives in Lead, S.D., identifies as nonbinary and uses they/them pronouns. Having been bullied at school, they weren't thrilled with taking out an ad.
"Honestly, I didn't even think much of who's going to show up to protest," said Perci. "Whatever. You do you."
But the question stuck with Perci's mom.
"What are you running from?" asked Dianne. "Perci was running for safety. We were hoping it'd kind of get overlooked."
Going to court, then the paper
South Dakota finds itself at the middle of a national conversation on transgender rights. Proponents of a controversial "fairness in women's sports" bill don't use the word "transgender" often . Neither does South Dakota Gov. Kristi Noem, who prefers to say "boys should play boys sports."
But this week, with Noem caught in a political pickle after issuing a style-and-form veto to House Bill 1217 , the sports measure that separates athletes by so-called "biological sex," people are taking a closer look at the fine print on a range of policies and state laws dealing with gender identification.
If anything, what Noem's suggested edits reveal is the often bureaucratic process by which transgender individuals, particularly youth, seek legal status according to their sex identity.
State law, for example, requires both a judge's order and an affidavit to amend the vital record. According to court filings first reported by South Dakota Public Broadcasting , at least 10 individuals since 2017 have sought to change sex markers on birth certificates through a county judge. A records analysis by Forum News Service finds three have been minors.
Out in Lead, Perci waited to apply until their 18th birthday, as Dianne said their father — who disagrees with Perci's transition and lives out-of-state — wouldn't consent, which state law requires for minors.
So Perci and Dianne waited. After Perci turned 18, the two drove to the Lawrence County courthouse in Deadwood, paid a $70 fee, and got the paperwork to file a notice with the newspaper. The ad cost another $60.
While Dianne says at the time they were worried it might catch the father's attention, they now wonder if the ad may've also caught the attention of someone else.
That January, South Dakota's most famous purveyor of transgender-related legislation, Florence Republican Rep. Fred Deutsch , brought a bill, HB 1076 , that would've closed off the birth certificate amendment process — currently legal in the state and utilized by individuals in courthouses from Sioux Falls to Yankton to Rapid City — to transgender people.
Chief among his objections included in the text of the bill?
"In at least one pending case," Deutsch's bill read, "a circuit court has been asked to change the sex designation on the petitioner's birth certificate from female to nonbinary."
In an email on Wednesday, March 24, Deutsch declined to say the pending case his bill referenced, only saying he found the name via the state's court system. But even if Deutsch had another pending case in mind, Perci's mom is adamant the process of publicizing sex change petitions needs to change.
"It makes vulnerable people even more so," said Dianne.
'You can find everything else'
South Dakota is far from the only state requiring public notice to be given prior to a court hearing in which a name change is involved. Many states require newspapers print these notices. Neighboring North Dakota , for example, also has the requirement — though publication can be waived in case of domestic violence or when only the first or middle name is changed.
Attorneys point out the rules, such as in South Dakota's case , can often date back to the 19th Century, as protections against persons who fleeing fraud or perpetuating other crimes.
And while the legal concern over minors with name changes can be particularly sensitive, by no means were these century-plus-old laws designed to create problems for transgender individuals.
It's also not clear how many states require a public notice like South Dakota's. Two dozen states don't require a court order or proof of surgery, says Movement Advancement Project . Only one state, Tennessee, prohibits birth certificate amendments.
According to various cases in South Dakota's court system, notices involving hearings around sex designation and name changes have appeared in various papers across the state, from small towns to larger cities. They usually start "Notice is hereby given," name the child, the proposed new name, and give time, date, and location of a hearing.
They're legalistic. They're transparent. But they're often not telling the full story.
While South Dakota only allows "male" or "female" as sex designations on the birth certificate, the state where Perci was born — Oregon — allows an "X" for nonbinary persons on birth certificates.
"It's not amended," said Dianne, who said Perci has an "X" on their certificate. "It's a whole new birth certificate."
That also differs from South Dakota.
While judges have usually granted the requests, some court records show discrepancy in how judges issue the gender marker changes or whether the birth certificates are issued anew or amended.
In one instance, the Department of Health's vital records supervisor took months to respond to a Sioux Falls judge's order over a squabble on wording between "sex" and "gender markers"
Day in court
Life as an openly LGBTQ person in western South Dakota has not been a cakewalk, says Perci. They've heard slurs and avoided sports, in part, due to concerns around participation rules. But Perci's mom says the community among the transgender allies across the state is tight.
As the day — Jan. 20 — approached when Perci would appear in the Deadwood courtroom of Fourth Judicial Circuit Court Judge Eric Strawn, Dianne tapped the network to protect against anyone — a family member or even a stranger — who might show up to dispute the petition.
"We were a little worried," said Dianne.
Dianne contacted the South Dakota-based Transformation Project and The Black Hills Center for Equality . Even Perci's admissions counselor at the North Dakota college where they will attend next year drove down for the hearing.
When the day arrived, no one arrived to object. Just friends and allies gathered at the old Victorian courthouse. Judge Strawn only allowed Perci and Dianne in. The hearing took five minutes.
"We had a good showing," said Dianne.
But all of it — save a letter from Perci's treating physician that Judge Strawn sealed — is public record.
"You can find everything else," said Dianne.
Sex defined by 'birth certificate or affidavit'
Two days later, and three hours to the east in Pierre at the Statehouse, Deutsch's birth certificate bill was read aloud for the first time on the House floor. That next week, hours after a narrow defeat in committee, over a third of the House of Representatives stood to "smoke-out" the measure, a move to revive a dispatched act. Eventually, the bill met its demise in a senate committee.
But its ghost lives on.
As HB 1217 proceeds, with amended language that would theoretically allow a student to participate according to affidavits or birth certificates, Susan Williams of the Transformation Project now sees what might've been had that first bill passed.
"Legislators working on anti-trans legislation had a plan," said Williams on Wednesday.
On Monday, March 29, legislators reconvene in Pierre to decide what to do on Noem's proposed changes to HB 1217. The bill's senate sponsor, Sen. Maggie Sutton , R-Sioux Falls, has suggested she's not driven by animus for transgender individuals, invoking a LGBTQ nephew on the senate floor and saying "we fully support who they are." Sutton has claimed she's driven by protecting Title IX and wanting to ensure girls don't face competitive disadvantages on the ballfield or track.
But the language of bill supporters is a tight rope of meaning for many observers.
At a free-flowing press conference on Monday hosted by Noem, the word "transgender" was rarely uttered by the speakers. When the governor was asked about transgender children's access to sports, former NFL running back Herschel Walker intervened, boasting he could win a "gold medal" in a women's event at the Olympics.
"Really thinking on it, if that's what I dealt with, it would be so much worse for a trans girl let alone a minor," said Perci via text message. "HB 1217 is such a stupid situation."
It also might soon be the state's law, forcing minors who wish to play sports to amend birth certificates, to appear before county judges, and to take out newspaper notices they hope will just be buried in the classifieds.