SC senators approve K-12 mandate that ‘a boy will use the boys’ bathroom’

COLUMBIA — Students in South Carolina’s K-12 schools would need to use bathrooms and locker rooms corresponding to their biological sex at birth under a rule senators inserted into their state budget package.

The proposal approved by senators 30-7 on party lines late Wednesday applies to multi-stalled school restrooms and places where students undress, to include locker rooms and gym showers. It also specifies that during overnight school trips, students of different genders can’t sleep in the same room or use the same multi-occupancy bathroom — unless they’re siblings.

All 30 of the Senate’s Republicans voted for it. Some Democrats didn’t vote.

The vote came a day after state Superintendent Ellen Weaver sent a letter to district superintendents and school board members statewide recommending that they disregard new federal regulations expanding sex discrimination protections in Title IX to include sexual orientation and gender identity. The federal rules are supposed to take effect Aug. 1.

Sen. Wes Climer, R-Rock Hill, acknowledged taking “a bit of a U-turn” in offering completely different state rules for public schools.

“I don’t have any particular delight in standing here discussing this. In fact, I find it baffling, insane that we’re even having this conversation,” he said after taking the podium to explain his proposal.

This “stipulates in school settings that a boy will use the boys’ bathroom, the boys’ locker room, the boys’ changing room, and a girl will use the girls’ bathroom, the girls’ locker room, the girls’ changing room,” he said.

The proposal, he said, is in response to an 18-year-old senior at Rock Hill High who’s daily using the women’s locker room. Climer didn’t elaborate, and a spokesperson for the school district did not immediately respond to requests from the SC Daily Gazette for comment.

Under his proposal, districts that violate the rule risk up to 25% of their state funding.

Technically, the budget clause is not an all-out ban. Rather, it bars school districts from using any state taxes to maintain facilities or pay for trips in violation of the rule. However, since revenue sources for school operations generally all go into the same pot of money, it’s effectively a ban, as Republicans intend it to be. It’s written that way because state budget clauses must pertain to budget allocations.

A court fight?

Sen. Tameika Isaac Devine, D-Columbia, tried unsuccessfully to get Climer’s amendment thrown out as not germane to the budget. She also argued it incorrectly attempts to change state law that declares it illegal to discriminate based on sex or in ways “degrading to human dignity.” But she was overruled.

“We know that this amendment will be a violation of constitutional law, and we could be sued. The state could be sued,” Devine said. “I think we are willfully ignoring that to play to people’s fears.”

She pointed to a 2015 federal lawsuit in which a transgender student in Virginia successfully sued the local school board for not allowing him to use the men’s bathroom or locker room.

A federal appeals court agreed with the lower court’s ruling requiring the school board to allow him to use the facilities of his choice. And the Supreme Court in 2021 decided not to hear the case, allowing that decision to stand.

Climer acknowledged a lawsuit is likely, and the same district court that ruled on Virginia’s case may rule the same way.

But he thinks the U.S. Supreme Court would take the case this time, especially since more states are adopting similar rules, so justices could be settling multiple cases.

Regardless, “it was the right thing to do,” he told the Gazette.

“It’s unconscionable that an 18-year-old man is in locker rooms with 14-year-old girls,” he said.

Sen. Deon Tedder, D-Charleston, said if the transgender female student Climer’s referring to has undergone hormone replacement therapy to have more feminine attributes, using the men’s room might be inappropriate.

“If that person was born a male and has physically transitioned and is no longer a male, by voting for this we’d be sending a female into the male’s locker room now,” Tedder said.

SC education superintendent suggests schools disregard new Title IX rules

His arguments will likely come back next week.

Before adjourning Thursday, senators voted to put a bill banning gender-transitioning surgeries and hormones for transgender youth under 18 on priority debate status. Opponents have repeatedly said no such surgeries are happening in South Carolina.

Ten states require students to use the bathroom of the sex they were assigned at birth, according to Movement Advancement Project, an LGBTQ advocacy group.

That points to a changing climate from the days when North Carolina adopted a similar law, known as the bathroom bill, in 2016, causing nationwide uproar and losing the state major business deals. State lawmakers ultimately undid that law in 2017.

Back then, South Carolina lawmakers rejected a similar proposal from a GOP senator, with then-Gov. Nikki Haley calling it unnecessary.

“That ship has sailed,” Climer said.

Jace Woodrum, director of the American Civil Liberties Union of South Carolina, called Wednesday’s late-night approval of a budget clause a way to “sneak an unpopular policy” into state law.

“Right now, in South Carolina, it isn’t easy to be a transgender kid,” Woodrum said in a statement to the SC Daily Gazette. “Transgender kids are often bullied, called incorrect names, left out of sports and activities, and made to use restrooms and locker rooms that put their safety at risk.

“Instead of trying to make schools safer and fairer for all students, South Carolina lawmakers are bullying transgender students,” he continued. “They need to get their priorities in order.”

The bathroom requirement was one of many education-related clauses senators added to the budget before voting late Wednesday to send the amended, $13.8 billion spending plans back to the House.

They included one letting students from small private schools try out for public school sports teams, mirroring a bill advanced by the Senate Education Committee. With just six legislative days left in the regular session, that’s among bills running out of time to make it through the process. Putting it in the state budget makes it a one-year law. The proposal would allow students using state-funded scholarships for private school tuition continue playing on a sports team not offered at their new school.

Spending differences

Senators debated for two full days on the budget advanced by the Senate Finance Committee, mostly on policy. Very little of the floor debate involved dollar figures.

A final budget for the fiscal year starting July 1 is still weeks away. The House will get another chance to tweak its plan before the two versions go to a six-member committee of House and Senate members to hash out the differences.

One major distinction between the two proposals is how to spend $600 million in surplus sales tax collections that have built up since 2020 in an account for property tax relief. Gov. Henry McMaster recommended lawmakers put it toward fixing bridges.

The Senate plan would put $100 million toward accelerating an income tax cut. The rest would go to road and bridge projects, aside from $53 million set aside for the University of South Carolina’s new medical campus.

The House had proposed spending $500 million on a one-time property tax relief, averaging $359 per homeowner.

Senators also agreed upon higher raises for state employees than the House passed in its budget. The Senate budget would give all employees making less than $50,000 a $1,375 raise, with everyone else getting a 2.75% boost.

The House plan had recommended a $1,000 raise to anyone making $66,667 or less and a 1.5% raise to employees making more.

Both chambers agreed on raising first-time teachers’ pay to $47,000 minimum in the coming year, up from $42,500. They also agreed on a minimum salary schedule, giving teachers annual increases for experience through 28 years in the classroom. That’s one part of the budget now guaranteed. With both chambers in agreement, thoseteacher pay raises are now locked in as final.