South Dakota Gov. Kristi Noem is OK with a ban on transgender girls playing girls’ sports in high school, but doesn’t want it extended to college athletics.
The first-term Republican governor said Friday in a news release that she is exercising her special power to make style and form changes to state House Bill 1217, which as originally written would have required athletes participating in sanctioned sports in South Dakota to compete in events that align with their sex determined at birth.
Sponsored by state Rep. Rhonda Milstead and state Sen. Maggie Sutton, the measure would have applied to all K-12 and collegiate athletic events held in South Dakota.
But amid concerns over economic backlash and the potential for South Dakota to lose sanctioned sporting events like NCAA tournaments, Noem is sending the bill back to the Legislature.
“Unfortunately, as I have studied this legislation and conferred with legal experts over the past several days, I have become concerned that this bill’s vague and overly broad language could have significant unintended consequences,” Noem said in a letter sent to media and legislators.
Short of vetoing the bill, the style-and-form recommendations require a simple majority of the state Legislature to affirm the changes the governor wants.
Lawmakers who supported HB1217 aren’t happy.
Milstead, who earned a speaking appearance at the Conservative Political Action Conference last month to talk about what she says is a “fairness in women’s sports” issue, said she vehemently disagrees with the governor’s insistence that the bill needs modifications. And the use of a style-and-form “veto”, typically used to fix typos and clerical errors, is inappropriate, she said.
“Legislators are the ones who makes the laws and the governor signs them,” Milstead said. “She’s gutting the bill and writing a new law and that’s not her job.”
Noem’s decision not to sign the bill is an about-face from where she was the day it passed. When it cleared the Senate in early March, Noem expressed her excitement to sign the bill into law.
But earlier this week, she told the Argus Leader that she’d since determined there were unforeseen problems with the bill. And in her statement Friday, she said after consulting with attorneys and considering the emotional challenges facing young people, more precise language in such a law is necessary.
“Overall, these style and form clarifications protect women sports while also showing empathy for youths struggling with what they understand to be their gender identity,” Noem wrote. “But showing empathy does not mean a biologically-female-at birth woman should face an unbalanced playing field that effectively undermines the advances made by women and for women since the implementation of Title IX in 1972.”
Earlier:Gov. Kristi Noem intends to sign anti-trans sports bill passed in Senate
Under HB 1217 as passed by the Legislature, students who want to join athletic programs would need to submit statements verifying their age, biological sex and that they haven’t taken any steroids in the 12 months preceding their competition in the team or sport. The statement must be signed by a parent if they are under 18.
The changes Noem wants aren’t enough to appease high school athletic groups who say creating a law governing gender and sports activity isn’t necessary.
Dan Swartos, executive director of the South Dakota High School Activities Association, said the organization is still in opposition to the bill, as it impacts a very small number of student-athletes at the K-12 level: “right now, zero,” he said.
“Our policy has worked,” Swartos said of the current SDHSAA policy. “At the end of the day, we have a legislative process and you have to respect that process when you agree and when you disagree. We will adjust our policies accordingly and move forward.”
The South Dakota ACLU issued a statement Friday afternoon about Noem’s decision.
“House Bill 1217 was never about protecting fairness in women’s sports. It was about discrimination and the erasure of trans girls, pure and simple,” said Jett Jonelis, ACLU of South Dakota advocacy manager. “Gov. Noem’s decision not to issue a full veto of this anti-transgender bill into law is disappointing. We are relieved, however, that the organizing by trans youth and pressure from business leaders, educators and parents has given us the chance to fight to block this bill from passing.”
Noem’s use of the style-and-form veto could also be headed to court. Milstead said she believes the recommended modifications to HB 1217 that the governor has made go beyond minor, house-keeping updates. Rather, they substantively change what the bill does, she said.
And a legal challenge isn’t out of the realm of possibilities, she said.
“These are not just style and form changes,” Milstead said. “Whether that constitutional challenge happens before, during or after Veto Day, I’m not sure.”
HB 1217 isn’t the first time lawmakers in South Dakota have grappled with the notion of governing who can compete in which sporting leagues and activities. Six similar bills have failed in the past:
The only bill to make it nearly as far as this one was HB 1008 in 2016, known as the “bathroom bill.” Former Gov. Dennis Daugaard, a Republican, then vetoed the bill after meeting with transgender people who helped him see the issue “through their eyes.”
Tournament cancellations, legal battles on horizon
Noem didn’t say that the potential loss of revenue is driving her decision, but economy boosters have warned HB 1217 as originally written could pose unintended consequences for South Dakota.
Cancellation of NCAA tournaments, costly litigation from the ACLU and other economic impacts to the state may be on the horizon.
The NCAA has inclusion policies for transgender athletes that conflict with the legislation and requires that NCAA sports teams certify there are no laws or ordinances impacting the welfare of student-athletes or staff.
Dave Zimbeck, a lobbyist for the Sioux Falls Sports Authority, shared concerns that the NCAA could pull out of the state because of the discriminatory law, which could have economic consequences as the tournaments rake in millions of dollars for the city and make up to 100 full- and part-time jobs.
South Dakota hosts not just the Summit League tournament, but Division I women’s basketball and hockey regionals, Division II wrestling, basketball and volleyball championships.
The state could lose out on bids it’s seeking, or could lose out on a tournament that’s already been awarded, such as next year’s Summit League basketball tournament. Colleges failing to follow NCAA inclusion policies could lose their NCAA accreditation, barring them from competition, Zimbeck said.
