South Dakota legislators falter on child sterilization

February 10, 2020

Today Kara Dansky, board member of the Women’s Liberation Front (WoLF) delivered testimony in support of South Dakota’s House Bill 1057, the Vulnerable Child Protection Act, introduced by Republican state Representative Fred Deutsch to prevent the sterilization of minors who self-identify as transgender. Under recent amendments the bill no longer contains a criminal penalty, but instead gives minors and parents or guardians of minors the right to file a civil lawsuit if they are harmed by doctors performing certain acts that are prohibited by the bill: performing castration, hysterectomy, mastectomy, or other “gender transition” surgeries on minors, and administering cross-sex hormones or giving puberty blockers to developmentally healthy minors.

Unfortunately, the bill was rejected by a 5-2 vote in the State Senate Committee on Health and Human Services. Reviving the bill will require a vote of one-third of the elected state senators, and we certainly hope the bill’s sponsor and supporters will pursue this option. But, for now, doctors in South Dakota remain free to surgically and chemically sterilize minors, as a supposed “treatment” for kids who claim to feel that their bodies mismatch their subjective “gender identities.”

Some legislators worried that tourists, or doctors who seek to do what is prohibited by the bill, might hesitate to bring their dollars and earning capacity into the state. Several activists claimed without evidence that children denied these procedures and hormones would inevitably commit suicide. The committee chair worried on behalf of parents who would be unable to consent to the surgical or hormonal sterilization of their own children, perhaps forgetting that many parents consented to the eugenic sterilization of their children during the era when that was allowed.

Despite this unfortunate development, WoLF commends the lead sponsor Rep. Deutsch and his supporting colleagues for having the courage to prioritize child safeguarding and reject threats of economic and emotional blackmail. 

Prepared testimony of Kara Dansky: 

Good morning. Madame Chair and committee members, thank you for having me here in South Dakota today.

My name is Kara Dansky and I live in Washington, D.C. I am an attorney, a radical feminist, a lifelong Democrat, and former senior counsel at the ACLU national office’s Center for Justice. I serve on the board of the Women’s Liberation Front, known as WoLF. I am here today primarily to address the unsupported assertion that House Bill 1057 is unconstitutional.

This modest bill would create a civil cause of action for young people who end up regretting their childhood decision to undergo medically unnecessary and harmful medical procedures that can result in permanent sterilization. Similar bills have been filed in Florida, Colorado, Missouri, Oklahoma, South Carolina and Kentucky. Litigation appears to be likely in one or more of these states if one of the bills passes, though it is not at all clear that such litigation would necessarily arise in South Dakota.

The ACLU of South Dakota has proclaimed that “It is unconstitutional to single out one group of people and categorically ban all care, no matter how medically necessary.” But it is not at all obvious why this bill might be unconstitutional.

If the ACLU is relying on the 14th Amendment’s Equal Protection clause for its assertion that the bill is unconstitutional, this would be flawed. Equal protection analysis involves a complicated legal examination of what degree of scrutiny should apply to a particular individual or group’s claim regarding discrimination. Crucially, however, this pre-supposes the existence of a definable class of persons. As WoLF has repeatedly argued, “transgender identity” is not a class of people that has been defined in any meaningful or non-circular way.

Even more importantly, the Court’s statement in a case called Reed v. Reed, where it first recognized the importance of protecting the characteristic of sex under the Equal Protection clause, that “this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways,” gives the lie to the ACLU’s vague and unsupported claim that “[i]t is unconstitutional to single out one group of people and categorically ban all care.”

Finally, the Supreme Court has said, “that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected.” There is simply no reason to believe at this time that a court would rule that a minor’s ability to make decisions that are likely to cause irreversible physiological damage is constitutionally protected.

Let’s be clear about what we are talking about here. This modest bill would create a civil remedy for young people who regret their decisions to undergo procedures that can result in disease, loss of organs, and permanent sterility. The single most compassionate thing our society can do for children who are struggling is to encourage them to accept themselves exactly as they are.

Thank you for your time today. Please vote yes.