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Senate Bill 109 Lets Locals Tackle Anti-LGBT Bias, Relieves Burden of Saying “Sex”

With Senate Bill 109, Senator Stan Adelstein (R-32/Rapid City) seeks to add "gender preference" to the list of discriminatory practices that local governments may investigate under SDCL 20-12-4. Since pastoral politicos Scott Craig (R-33/Rapid City) and Steve Hickey (R-9/Sioux Falls) are selling House Bill 1087, their school-gunslinger bill, as an affirmation of local control, they will surely get on board with this measure to allow local governments to better protect the human rights of their constituents.

Oh, wait, that's odd: when I check the sponsor lists, I don't see Craig or Hickey crossing over to sponsor SB 109. Of HB 1087's 29 sponsors, only two, Senator Adelstein's neighbors Senator Craig Tieszen (R-34/Rapid City) and Senator Mark Kirkeby (R-35/Rapid City), who have signed on to SB 109. Evidently putting kids in danger of more accidental firearms discharge as a fearful response to something that almost never happens in South Dakota is a higher priority for Craig, Hickey, and 25 other legislators than the discrimination that happens against homosexuals every day in our fair state.

The Robbinsdale Radical supports SB 109, but notes with curiosity that the bill also strikes the word "sex" from the amended statute and replaces it with "gender." If we need to make a distinction, "sex" refers to the all that biological stuff; "gender" refers to the social constructs we pile on top of sex. "Gender" used to refer strictly to grammar, the distinction between masculine and feminine (and, in Russian, neuter!) nouns and adjectives. In the 1960s, feminists started to appropriate "gender" to make the point that a lot of what we associate with sex is determined socially, not biologically.

I won't get too deep into the weeds here (but who knows what will happen in the comment section!). I will note, though, that if we replace "sex" with "gender" in this statute, we may technically open the door for a woman to discriminate against a man by making lewd comments about the bulge in his blue jeans. "My client was making no reference to his socially constructed gender identity," a statute parsing lawyer could argue. "My client was simply noting with approval the size of his sex, his physical package."

Mr. Price's concerns are less graphic and more (1) legal and (2) anti-puritanical:

...I do not understand why you did not use the legally standard terms "sexual orientation" and "sexual preference", instead of the vague terms "gender" and "gender preference". I believe these terms weaken the law and in my opinion would make it difficult to align South Dakota law with Federal law and local laws that already exist in South Dakota (for example, in the City of Brookings).

Are we so repressed in the state of South Dakota that we no longer can call sex sex? [Curtis Price, "In Which I Ask Sen. Adelstein: Why No Sex?" Robbinsdale Radical, 2013.01.18]

South Dakota statutes are already peppered with references to both "sex" and "gender". A quick text search finds "sex" appearing much more frequently than "gender". Consider: we prosecute sex offenders, not gender offenders. (Actually, I'm prosecuting gender offenders on my semester exams, when students write le musique instead of la musique.) Specific to SB 109, our statutory chapter on human rights, from which the chapter on county and municipal protections of human rights takes its definitions, defines unfair and discriminatory practices in terms of "sex", not "gender".

I look forward to hearing the Senate Local Government erupt in feminist critique of language. I also look forward to our legislators overcoming that debate and passing Senate Bill 109.