South Dakota's HB1217, an "Act that promotes continued fairness in women's sports," failed on March 29 to the surprise of many. The bill seems to have been popular with most So. Dakotans. Even Republican Governor Kristi Noem seemed to support the bill when it was first presented by sponsor Rep. Milstead.
State House members passed the bill 50-17. And, according to a report by Keloland, "Senator Maggie Sutton was lead sponsor in the Senate, where it won approval 20-15 after supporters used a procedural maneuver known as a smoke-out to force it out of a Senate committee where it had been stopped, and then got it on the Senate debate calendar with no votes to spare." However, as Noem read through the legislation, she felt the bill was not quite ready for prime time because of its "vague" language. Milstead disagreed, telling Keloland that Noem "violated the section of the South Dakota Constitution that outlines some of the governor’s veto power" and overreached by "trying to legislate law as the executive branch.”
Noem's decision should come as no surprise to those who have followed her leadership style. Noem is a self-described, pragmatic, and collaborative leader who values the Constitution as written. South Dakota was the only state in the country that, in her words, "never ordered a single business or church to close." During the pandemic, she made key decisions based on well-considered input from a trusted circle of experts and advisors. More importantly, throughout the pandemic, she consistently stated an abiding belief and faith in the ability of the people of her state to make sound decisions for themselves and their families. She has shown herself to be a leader who carefully considers the unintended consequences of well-intended decisions—especially when the government is involved in making those decisions. Her Conservative Political Action Conference (CPAC) 2021 speech illustrates how Noem thinks about her role as the top executive in the state.
In a March 19 tweet above, Noem explained her rationale for returning the bill to the legislature based on Style and Form. To be clear, Noem has no quarrel with the bill's overarching premise—mainly that girls and boys should compete separately in sports. She supports language in the bill that clearly expresses the rationale and research behind such a position. As UncoverDC reported on Feb. 12, in fact, there is research that supports gender-based performance realities in athletics.
After consulting extensively with legal experts on fairness in women's sports, it became apparent to her that language in the bill could easily create administrative bureaucracy or costly legal nightmares in the K-12 schools. The experts repeatedly advised her that she would almost certainly invite a firestorm of litigation from the NCAA and transgender rights activists at the collegiate level if she passed the bill as presented. Noem was simply not going to take that risk.
Thus, Noem wrote her March 19 letter to the legislature explaining her suggested Style and Form changes that would more likely protect her state from unnecessary and costly legal battles. Her letter explains that she has "become concerned that this bill’s vague and overly broad language could have significant unintended consequences." Her concerns centered around requirements in the bill that could render the state vulnerable to lawsuits and unwieldy "administrative burdens on schools."
Her letter states that yearly verification of "performance-enhancing drugs, including anabolic steroids," in Section 2 of the bill, "presumably [addresses] a student taking these drugs as a part of a gender transition, but House Bill 1217 is not limited in this way. Rather, if a male student-athlete failed to make the football team and later learned that another student on the team was taking steroids without disclosing it, the student who didn’t make the team would be entitled to sue both the school and the steroid-using student for damages."
Noem highlighted in her interview with Carlson that such language could mean that a child who doesn't make the team could "up to a year later come back and sue every member of that team in the K-12 system and the entire school district." As a consequence of the law, Noem thinks this would be disastrous for families and schools and completely unnecessary.
In addition, Noem wrote, "Section 2 creates an unworkable administrative burden on schools, who under its terms must collect verification forms from every student-athlete, every year, as to age, biological sex, and use of performance-enhancing drugs; and furthermore must monitor these disclosures throughout the year so that if 'reasonable cause' is found of a false or misleading form, the school can take action to avoid civil liability."
Her final concern addressed what she said is the bill's "unrealistic approach" in the context of college athletics. While she agrees that competition should be gender-separated, in her opinion, the wording of the bill potentially set the stage, either for the loss of opportunity to compete for athletic teams in national competitions and/or costly litigation. This arises from the need to comply "with the national governing bodies that oversee collegiate athletics," such as the NCAA.
She stated in her letter that while she does not necessarily "agree with the actions, these sanctioning bodies take, [she understands] that collegiate athletics requires such a system." Noem's March 22 interview with Tucker Carlson clarifies the rationale behind her decision to return the bill for vague language.
On March 29, after two months of legislative debate, the So. Dakota legislature rejected her changes, rendering the bill dead on the floor. Noem wrote a letter to legislative leaders on the same day, reiterating her commitment to her proposed changes, and then signed two executive orders (EOs). Those EOs would effectively be used as placeholders until, in her words, the issues "can be resolved through legislation"—her preferred method of resolution. One EO protects fairness in K-12 athletics, and the second protects fairness in collegiate athletics.
Noem has long been an advocate of gender separation in sports when she led the fight for participation in 4H Rodeo in her state. In her March 22 press conference, she announced her new coalition, called Defend Title lX Now, which partnered with former NFL team captain Jack Brewer and former NFL football player Hershel Walker. The mission of her coalition is to protect and enforce Title lX for women and girls.
However, equally important is that the coalition is also the first step toward "building strength in numbers" so that she and So. Dakotans will be better prepared with the awareness, support, and muscle needed to "go after the NCAA," should such a situation arise. Consistent with the way she seems to lead on most issues of import, she told Carlson that she wants to "take her argument to the public" and "solve the problem—not just pick a fight to pick a fight."