Eye on the Opposition: South Dakota Bill Being Pushed by Anti-LGBT Alliance Defending FreedomBy Megan Clayton • February 18, 2016 • 5:19 pm
Over the last year and a half, Alliance Defending Freedom (ADF), an extreme conservative evangelical legal organization, has sent letters to school districts all over the country, urging them to implement ADF’s template policy. Failure to do so, they claim, would endanger students and expose the school districts to legal liability. Very few districts were convinced by these scare tactics. Now, with state legislatures in session, ADF is working on a larger scale. They are lobbying hard to codify their discriminatory policies into state law, which would override the majority of school districts nationwide that have chosen to implement more inclusive policies.
ADF’s failure so far is easy to understand – this just isn’t a problem that requires solving. Transgender students simply need a place to use the bathroom and change for gym class just like every other kid. If there were an epidemic of assaults, ADF lawyer’s would be trumpeting them at every hearing – but they aren’t.
Instead, they’re trying to pick a legal fight by getting a discriminatory law passed in one of the nation’s most conservative legislatures (The GOP has held a supermajority in the South Dakota statehouse since 1976). Their efforts in South Dakota were covered by Think Progress two weeks ago – but since then, the bill has been approved by both chambers, and it’s now before the Governor. Freedom for All Americans, along with our partners in South Dakota and across the nation, urge the governor to veto this shameful, first-of-its-kind bill.
The group with its fingerprints most on this legislation is the Alliance Defending Freedom (ADF). The conservative legal juggernaut insists on its website that it “refrains from participating in or promoting any type of legislation” and “does not lobby government officials,” but that claim doesn’t seem to align with its level of engagement in South Dakota. Indeed, ADF and its legal counsel Matt Sharp seem to be thoroughly involved in crafting and defending the legislation.
The truth about this legislation – and the other legislation like it that ADF is pushing in other states – is that the organization’s goal isn’t to change policy – but rather to initiate drawn-out litigation that will support their fundraising efforts. ADF encourages states to pass laws they know will result in lawsuits, and then they offer pro bono legal defense. When reasonably concerned legislators asked whether this “free legal defense” would include paying any settlement or damages incurred from losing such a lawsuit, ADF Attorney Matt Sharp said “no.” Despite this statement, Senate sponsor Brock Greenfield insisted to his colleagues on the Senate floor that ADF would pay damages. School districts, like cities, counties and all other government entities, carry liability insurance to protect against lawsuits. Insurance providers typically require the district to use established attorneys who advocate first and foremost for the district’s interest. Accepting ADF’s pro bono offer would likely void such policies, leaving South Dakota taxpayers responsible for potentially millions in damages, all stemming from passing a bill that blatantly violates federal law.
State Senator Bernie Hunhoff knows this, and this week he said as much on the floor of the Senate. He offered an amendment establishing a legal defense fund and requiring that any pro bono representation include damages. He acknowledges his frustration that “an out-of-state special interest group wants to make South Dakota a guinea pig.” He was repeating the same point he made days earlier in the bill’s committee hearing:
“I don’t see a problem that it solves, which is usually the number one criteria when we propose or consider a bill. And yet it could do real harm. It could be costly – it could create lawsuits. It could be good economic development for Mr. Sharp and his team, but it could be costly to our school districts and our state. Worst of all, it unfairly targets a minority of youth who face gender identity issues- and you know, high school is hard enough for anybody – we’ve all been there.”
The Alliance Defending Freedom has a long history of pushing an anti-LGBT bill in one state as a model and then working to replicate it in others. For example, the ADF has long pushed a definition of “sex” that specifically and aggressively excludes transgender people. Their definition – which focuses on chromosomes in a way that few definitions do – has been replicated this legislative session in South Dakota, Wisconsin, Missouri, and Virginia.
And a bill very similar to South Dakota’s HB1008 was also introduced last fall in Wisconsin – where community members came together to defeat it, speaking out in a huge hearing. Media Matters reported on the similarities, writing:
ADF has launched a concerted nationwide effort to push its own “model” policies denying transgender students equal access to school facilities. As State Representative Jesse Kremer, who introduced AB 469, pointed out, Wisconsin’s bill mirrors similar legislation in Minnesota and Nevada. As Media Matters has documented, those bills also drew heavily from ADF’s model legislation.
The involvement of groups like the Alliance Defending Freedom means that in each of these state fights where anti-LGBT bills are proposed – from Wisconsin to South Dakota – the entire country must be vigilant, and all supporters of LGBT non-discrimination have a stake in these battles, no matter where they live. These bills go far beyond the borders of the states where they are proposed – in each state, they’re essentially experiments – and if they succeed, groups like ADF don’t waste time in pushing them to other legislatures across the country. Each and every time anti-LGBT bills are proposed and gain traction, the country must stay alert – and band together to stop them before they inflict irreparable damage on LGBT people in the states where they are proposed – and on LGBT Americans nationwide.