Kristi Noem’s Mistake on Fairness in Girls’ Sports

Published March 23, 2021

National Review Online

Earlier this month, South Dakota’s Republican governor Kristi Noem announced that she was excited to sign House Bill 1217 — the “Women’s Fairness in Sports” bill — a state law that would require athletes to compete against individuals of their own biological sex rather than of the gender with which they identify.

The bill, one of more than two dozen such bills introduced in states across the country, is aimed especially at protecting female athletes who, as the result of transgender activism and changing federal policies, are at risk of being forced to compete against biological men who identify as women.

But two weeks after her initial announcement, the governor backtracked, announcing instead that she would issue a “style-and-form” veto of H.B. 1217. Though Noem said she believes “that boys should play boys’ sports, and girls should play girls’ sports,” she said she was concerned that the bill’s “vague and overly broad language could have significant unintended consequences.”

One such consequence Noem mentioned is the retaliation that might result from the fact that the bill’s provisions apply to athletes at the collegiate level.

“Competing on the national stage means compliance with the national governing bodies that oversee collegiate athletics,” Noem wrote. “While I certainly do not always agree with the actions these sanctioning bodies take, I understand that collegiate athletics requires such a system — a fifty-state patchwork is not workable.”

In other words, Noem was insinuating that, if South Dakota were to require athletes to compete against their own biological sex, the National Collegiate Athletic Association (NCAA) might censure the state or otherwise penalize athletic programs at the state’s colleges and universities.

In her style-and-form veto, then, Noem proposed that “Women’s Fairness in Sports” be revised to apply only to elementary and high-school athletics, governed by the South Dakota High School Activities Association.

The governor’s proposal went even further yet. In addition to entirely removing collegiate athletics from the bill’s provisions, Noem also altered the bill’s language to allow athletes to compete based on biological sex “as reflected on the birth certificate or affidavit provided upon initial enrollment.” This edit would permit a biological male to compete against women if he obtained the appropriate paperwork changing his legal records to match his gender identity — rather than his sex — at birth.

In her veto, Noem proposed removing the section of H.B. 1217 that gave a cause of action to female athletes who allege that they were deprived of athletic opportunities as the result of having been displaced by a biological male. Her changes would also remove a provision requiring student athletes to certify that they haven’t taken performance-enhancing drugs, a crucial enforcement mechanism.

Some critics, including the Republican speaker of the South Dakota House, have argued that some of these alterations amount to an abuse of the style-and-form veto as outlined in the South Dakota constitution.

“Legislators are the ones who make the laws, and the governor signs them,” South Dakota state representative Rhonda Milstead, the bill’s sponsor, told the Sioux Falls Argus Leader. “She’s gutting the bill and writing a new law, and that’s not her job.”

Following the announcement of her veto, Noem faced significant criticism from conservatives at the national level, including from groups such as Alliance Defending Freedom (ADF), the Family Research Council, and the American Principles Project. Citing a comment from a Democratic lawmaker in South Dakota, some critics have suggested that Noem fears Amazon might back out of an agreement to open a fulfillment center in Sioux Falls if she signs the legislation.

Clearly concerned by the harsh blowback, Noem held a press conference yesterday announcing a new initiative called “Defend Title IX Now,” described as “a coalition of athletes, leaders, and anyone who cares about defending fairness in women’s sports.”

At the conference, Noem reiterated that she was “excited” to sign H.B. 1217 but referred to it as a “participation trophy” in its current form. Noem said she’s confident in her authority as governor to sign such a law as applied to secondary education, but that if it were applied to state athletic programs, “it would face retaliation [and] would be a cost to taxpayers.”

Noem said legal scholars have told her that “South Dakota’s chances of winning a lawsuit against the NCAA are very low” if the state sued the governing body for taking punitive action against its state colleges and universities.

But for supporters of the legislation in its initial form, Noem’s effort to build a Title IX coalition rings hollow.

“While we appreciate that Gov. Noem has now taken an interest in coalitions aimed at protecting girls and women’s athletic opportunities, she is not only late to the game, but she is now trying to play coach,” ADF general counsel Kristin Waggoner said on Monday, adding that the coalition is “a hollow substitute” for the protections in the bill.

Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.

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