South Dakota Passes Law Banning All Gender-Affirming Treatments For Minors

The South Dakota legislature last week gave final passage to House Bill 1080 (full text) which prohibits healthcare professionals from providing either drug, hormonal or surgical treatments to minors for the purpose of altering the appearance of the minor's sex or validating a minor's perception of their sex that is inconsistent with the biological indication of their gender. The bill specifically includes a ban on administering drugs that delay puberty for minors. Minors currently receiving drug or hormonal treatments for gender dysphoria must be weaned off their medication by Dec. 31, 2023.  According to CNN, Gov. Noem will sign the bill into law.

South Dakota Will Prosecute Pharmacies That Dispense Abortion Drug

Yesterday, South Dakota Governor Kristi Noem and Attorney General Marty Jackley released a letter (full text) sent to South Dakota pharmacists warning them that despite FDA approval for the abortion drug Mifepristone to be dispensed at pharmacies, it violates South Dakota law to do so.  The letter reads in part:

This side-stepping on the part of the FDA permits dangerous, at-home abortions without any medical oversight. It also violates state law that makes dispensing this medication for abortions a felony.

Chemical abortions remain illegal in South Dakota. Under South Dakota law, pharmacies, including chain drug stores, are prohibited from procuring and dispensing abortion-inducing drugs with the intent to induce an abortion, and are subject to felony prosecution under South Dakota law, despite the recent FDA ruling. Their resources should be focused on helping mothers and their babies, both before birth and after.

All abortions, whether surgically or chemically induced, terminate the life of a living human being. South Dakota will continue to enforce all laws including those that respect and protect the lives of the unborn.

South Dakota Governor Signs Bill Barring Transgender Women On Women's Sports Teams

Yesterday, South Dakota Governor Kristi Noem signed Senate Bill 46 (full text) which prohibits transgender women from participating in women's sports teams or events in South Dakota schools and colleges.  The ban includes intramural and club events as well as inter-school competitions. It also extends to any accredited school, not just to public schools; to events sponsored by any activities association or organization; and to colleges under control of the Board of Regents or Board of Technical Education. NBC News reports on the governor's action.

South Dakota Governor Restricts Chemical Abortions

According to a press release from the office of South Dakota Governor Kristi Noem, on Sept. 7 the Governor signed Executive Order 2021-12 that orders state Department of Health to adopt rules to prevent telemedicine abortions and restrict chemical abortions in the state. According to the press release:

The executive order restricts telemedicine abortion in the following ways:

• Declares that abortion drugs may only be prescribed or dispensed by a physician who is licensed in South Dakota after an in-person examination;

• Blocks abortion-inducing drugs from being provided via courier, delivery, telemedicine, or mail service;

• Prevents abortion-inducing drugs from being dispensed or provided in schools or on state grounds; and

• Reiterates that licensed physicians must ensure that Informed Consent laws are properly administered.

The executive order also directs the Department of Health to do the following:

• Develop licensing requirements for “pill only” abortion clinics;

• Collect empirical data on how often chemical abortions are performed as a percentage of all abortions, including how often women experience complications that require a medical follow-up; and

• Enhance reporting requirements on emergency room complications related to chemical abortion.

South Dakota Governor Issues Executive Orders On Transgender Women In Sports After Vetoing Legislation On The Issue

On March 8, the South Dakota Legislature gave final passage to HB1217 which banned transgender women from participating on women's athletic teams or sports in schools and colleges in the state. It also included various enforcement provisions. On March 19, Governor Kristi Noem, instead of signing the bill, returned it to the legislature with a number of suggested changes. When the legislature failed to act on those changes, the Governor instead issued two executive orders to deal with the issue. Executive Order 2021-05 bans transgender girls from participation in girl's athletics in Grade K-12 public schools, but eliminates the causes of action and much of the paper work that was in HB1217. Executive Order 2021-06 calls for the Board of Regents to take the steps necessary within state law to implement a similar policy for colleges and universities controlled by the Board of Regents. CNN reports on the governor's actions.

South Dakota and South Carolina Pass New Abortion Provisions

This week the South Dakota legislature gave final passage, and sent to the Governor Noem for her signature, HB 1051 (full text) modifying the state's abortion laws. The bill further spells out the right in existing state law for a child born alive after an attempted abortion to have medical care.  The new bill defines "born alive". It also gives a mother as well as the child a cause of action for damages for the physician's negligence in attempting to perform the abortion. Finally it imposes additional reporting requirements on physicians and facilities performing abortions. Liberty Counsel issued a press release announcing the passage of the bill.

Meanwhile, as reported by The State, South Carolina Governor Henry McMaster yesterday signed into law S.1, the Fetal Heartbeat Protection from Abortion Act, prohibiting an abortion if a fetal heartbeat is detected. [Thanks to Scott Mange for the lead.]

Sioux Tribes Get Delay In Dakota Access Pipeline

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, March 25, 2020), the D.C. federal district court held that the Army Corps of Engineers needs to prepare an environmental impact statement on the proposed Dakota Access Pipeline route under Lake Oahe in North and South Dakota.  Sioux tribes rely on Lake Oahe water for, among other things, sacred religious and medicinal practices. Inside Climate News reports on the decision.

South Dakota Requires "In God We Trust" In Every Public School

Yesterday South Dakota Governor Kristi Noem signed Senate Bill 55 (full text) into law.  The new law requires every public school in the state to display the national motto "In God We Trust" in a prominent place. The law also provides for the state attorney general to assume the defense of any lawsuit that is filed challenging the law. Friendly Atheist reports on the new law.

Fugitive FLDS Leader Arrested

As reported by KUTV, the FBI in Salt Lake City announced the arrest in South Dakota on Wednesday evening of fugitive FLDS leader Lyle Jeffs. Last June Jeffs fled while under house arrest awaiting trial on charges of conspiracy to commit food stamp fraud and conspiracy to commit money laundering. (See prior posting.)  Lyle is the brother of Warren Jeffs, the now-jailed former leader of the polygamous FLDS sect.

New South Dakota Law Protects Religious Child-Placement Agencies

ACLU reports that on March 10, South Dakota Governor Dennis Daugaard  signed SB 149 (full text) into law.  The new law protects adoption and foster care agencies that act in accordance with religious or moral beliefs in placing children, providing in part:

No child-placement agency may be required to provide any service that conflicts with, or provide any service under circumstances that conflict with any sincerely-held religious belief or moral conviction of the child-placement agency.

It also explicitly bars any adverse action by the state against a child placement agency that acts in accordance with its religious or moral principles, except it does not authorize discrimination on the basis of race, ethnicity or national origin.  One of the primary effects of the legislation is to allow agencies to refuse to permit adoptions by same-sex couples.

Dakota Free Press reported on February hearings on the bill in which an ACLU witness pointed out that the bill would allow agencies to exclude adoptions or foster care placements by

not only same-sex couples, but also people who have a different religion [from] the agency, single parents, interfaith couples… families that don’t attend church weekly, service members or gun owners… based on the agency’s moral conviction regarding pacifism, all while children in need of homes languish in foster care and await permanent families. This bill even authorizes agencies to deny a child placement with a close relative and instead place that child with strangers if that relative is of the wrong religion….

Obama: Army Corps Looking For Alternative Pipeline Route To Protect Sioux Lands

As previously reported, the Sioux Tribe has been embroiled in litigation attempting to stop construction of an oil pipeline near the Standing Rock Indian Reservation in in North and South Dakota, contending that the construction will destroy sacred ancestral Tribal lands.  A federal district court has refused to enjoin the construction. Nevertheless the federal government said it would delay approval of the construction.  Now, NPR reports that on Tuesday President Obama told an interviewer that the U.S. Army Corps of Engineers is examining possible alternate routes for the Dakota Access Pipeline. Obama said in part:

We're monitoring this closely and I think, as a general rule, my view is that there's a way for us to accommodate sacred lands of Native Americans. I think right now the Army Corps is examining whether there are ways to reroute this pipeline in a way. So we're going to let it play out for several more weeks and determine whether or not this can be resolved in a way that I think is properly attentive to the traditions of the first Americans.

Court Rejects Sioux Challenge To Pipeline On Sacred Land, But Feds Delay Permission

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC Sept. 9, 2016), the D.C. federal district court refused to enjoin construction of the Dakota Access Pipeline near the Standing Rock Indian Reservation on sacred ancestral lands of the Sioux Tribe. (See prior related posting.) Summarizing its 58-page decision, the court said:

The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.

However, shortly after the decision was handed down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement (full text) reading in part:

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.  Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.  The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution.  In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.  Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals....

In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.

CNN reports on developments.

South Dakota Governor Vetoes Bill Restricting Transgender Students' Choice of Bathrooms

South Dakota Governor Dennis Daugaard yesterday vetoed a bill that would have prohibited public schools from allowing transgender students to use rest rooms and locker rooms consistent with their gender identity. Instead it would have required students to use facilities consistent with their anatomy and chromosomes at birth. (See prior posting.)  In his veto message (full text) Daugaard said in part:

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.

Washington Post reports on the governor's veto.

South Dakota Legislature Passes Bill On Transgenders In School Restrooms; 3 Other LGBT Bills Pending

This week the South Dakota legislature passed and sent to  Gov. Dennis Daugaard HB 1008 (full text) that provides:

Every restroom, locker room, and shower room located in a public elementary or secondary school that is designated for student use and is accessible by multiple students at the same time shall be designated for and used only by students of the same biological sex. In addition, any public school student participating in a school sponsored activity off school premises which includes being in a state of undress in the presence of other students shall use those rooms designated for and used only by students of the same biological sex.

"Biological sex" is defined as "the physical condition of being male or female as determined by a person's chromosomes and anatomy as identified at birth."  The bill goes on to provide that transgender students are to be provided with reasonable accommodation, which "may include a single-occupancy restroom, a unisex restroom, or the controlled use of a restroom, locker room, or shower room that is designated for use by faculty."

According to the Christian Science Monitor, the governor has not yet decided whether to sign the bill. The Argus Leader reports that the governor will meet both with transgender students and with the bill's sponsors before making a decision.

Human Rights Campaign says that two other anti-LGBT bills have been passed by the full House of Representatives, and another anti-transgender bill has passed through committee. HB 1112 passed by the House voids the current transgender policies of interscholastic activities associations and requires that their future policies determine sex by a student's chromosomes and the sex recorded on the student's birth certificate.

HB 1107 passed by the House bars the state from taking any action against a person because that person acts in accordance with a sincerely held religious or moral belief that marriage is between one man and one woman, that sexual relations should be reserved to marriage, or that the terms male and female refer to distinct and immutable biological sexes determined by anatomy and genetics by the time of birth.

Finally, HB 1209 which has recently cleared a House Committee provides:

Any public body ... that accepts any information on a South Dakota birth certificate as official and valid shall accept all information on a South Dakota birth certificate as official and valid in carrying out the public body's legal and official duties.

Developments In Marriage Equality Cases: Louisiana and South Dakota

There were two developments yesterday in the array of cases challenging same-sex marriage bans.  The U.S. Supreme Court denied the petition for direct review of a trial court decision in Robicheaux v. Devin, (Docket No. 14-596, cert. before judgment denied, Jan. 12, 2015) (Order List). The district court upheld Louisiana's same-sex marriage ban and the 5th Circuit last week heard oral arguments in the case. (See prior posting.)

Also yesterday in Rosenbrahn v. Daugaard, (D SD, Jan. 12, 2015), a federal district court held that  South Dakota's same-sex marriage ban violates the due process and equal protection clauses of the 14th Amendment.  However, the court stayed its injunction pending appeal to the 8th Circuit. Lyle Denniston at SCOTUSBlog reporting on the decision said:

Although most of Judge Schreier’s reasons for nullifying the South Dakota ban on Monday were familiar from other decisions, she was among the first to reject what has been a more recent claim by state officials: that is, that marriage is a domestic relations matter, and that federal courts have no jurisdiction over such matters.  There is such an exception, the Sioux Falls judge found, but that it does not go so far as to bar new constitutional claims against same-sex marriage bans.

Following the district court's decision, South Dakota Attorney General Marty Jackley reacted in a press release, saying in part: "It remains the State’s position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts."

Schools' Religious-Themed Snow Plow Decorations Rejected By City

For the last 5 years, the city of Sioux Falls, South Dakota has sponsored a "Paint the Plows" program.  Each participating public or private school is loaned a city snow plow and students use their artistic abilities to decorate the large plow blade.  Yesterday's Sioux Falls Argus Leader, however, reported that this year the designs painted on plow blades by two Lutheran schools brought complaints from a board member of the Siouxland Freethinkers. High school students painted their blade red and inscribed it in large white letters with the words "Jesus Christ."  The elementary and middle school painted its plow blade with the words "Happy birthday Jesus."  (Similar religious expressions were used last year without complaint.) After receiving this year's complaints, the city talked with the schools about creating a different design. At least the high school has decided to just let the city paint over the plow blade.

UPDATE: The Oct. 28 Argus Leader reports that Sioux Falls Mayor Mike Huether says that the city will not paint over the religious themed snow plow blades unless a court case says that it must, while city attorney David Pfeifle is taking a more nuanced approach, saying: "Our goal is to not paint them over, And we're exploring every option."

South Dakota Suit Challenges Ban on Same-Sex Marriage

On Thursday, six couples filed a lawsuit in federal district court in South Dakota challenging the constitutionality of South Dakota's constitutional and statutory ban on same-sex marriage.  The complaint (full text) in Rosenbrahn v.  Daugaard, (D SD, filed 5/22/2014), contends that the ban violates the due process and equal protection clauses of the 14th Amendment, and that the refusal to recognize same-sex marriages performed elsewhere also violates plaintiffs' right to travel. As reported by AP, South Dakota Attorney General Marty Jackley says that he is obligated by law to defend the state's ban.  With the filing of this lawsuit, only North Dakota with a ban on same-sex marriage that has not been challenged in the courts.