Remember last year, when Gov. Kristi Noem introduced a piece of trash legislation with the fancy title: the “Women’s Fairness In Sports” bill?
And remember how she giddily announced back in 2021 she would soon sign it into law?
Here’s what happened:
The South Dakota High School Activities Association, which already has a thorough policy in place to provide fair treatment and inclusion to transgender and LGBTQ athletes, became mad.
The few Democrats in the South Dakota Legislature, which opposed the bill to begin with, didn’t changed their stance and became mad.
Republican members of both legislative houses, which were blind-sided by Noem, became mad.
Alliance Defending Freedom (ADF), the conservative interest group which has been pushing forms of this anti-transgender legislation in state capitols across the country, became mad.
Transgender and LGBTQ citizens in South Dakota and across the nation remain mad.
All of this anger occurred last year after Noem painted herself into a corner and angered much of her Republican base last year by scratching out collegiate athletes from her 2021 bill that would prohibit transgender students from playing on a team that aligns with their gender identity.
Last year she blocked the legislation with what's known as a style or form recommendation, a tool to allow the partial veto of a bill that's cleared both the state House and Senate. Noem took issue with the inclusion of collegiate sports in the measure.
But after much debate about whether using that method to block legislation was constitutional, the House resoundingly rejected Noem's style and form veto last year with 67 members voting against affirming the changes she wanted.
During that whole process of fumbling the ball badly (no better time to throw in a sports reference here – ha!) she called a bizarre press conference in early 2021 which included participation by retired pro athletes, high school athletes and rodeo cowboys to announce she was forming a “Defend Title IX Now” coalition.
This coalition, which to my knowledge was never formed, was designed by Noem to push back against the NCAA so that she could legislatively discriminate against transgender athletes.
People with a lick of common sense in our nation know Title IX is working, it doesn’t need defending and Noem’s coalition back in 2021 was nothing but political theater.
Noem and her executive staff have had an entire year to ignore pressing issues in our state to craft another piece of legislation for this year’s legislative session to again attempt to make a transgender sports ban a part of South Dakota law.
She missed badly last year. Noem is going hunting again, determined to make transgender athletes a collective trophy to hang on the wall of her office. She’s introduced what she calls “an act to protect fairness in women's sports.”
We noted last year that South Dakota may get dragged into court by the American Civil Liberties Union (ACLU) if an anti-trans athlete bill becomes law in South Dakota. That observation likely holds true if this newly hatched bit of discriminatory legislation is approved this year.
The NCAA doesn’t have to go to court. It may simply announce that it will find a more friendly state for its athletes to compete.
The ACLU reminded South Dakota citizens last year that a law similar to HB 1217 was blocked by a federal judge in Idaho.
“It is not just the constitutional rights of transgender girls and women athletes at issue but … the constitutional rights of every girl and woman athlete in Idaho,” the judge noted and concluded that the law was based on nothing more than discrimination against transgender people.
The NCAA Inclusion of Transgender Student-Athletes guidebook is nearly 40 pages long. It notes that:
“Concern about creating an ‘unfair competitive advantage’ on sex-separated teams is one of the most often cited reasons for resistance to the participation of transgender student-athletes. This concern is cited most often in discussions about transgender women competing on a women’s team. Some advocates for gender equality in college sports are concerned that allowing transgender women – that is, male-to-female transgender athletes who were born male, but who identify as female – to compete on women’s teams will take away opportunities for women, or that transgender women will have a competitive advantage over other women competitors.”
The guidebook goes on at length about this topic. It states that “many people may have a stereotype that all transgender women are unusually tall and have large bones and muscles. But that is not true. A male-to-female transgender woman may be small and slight, even if she is not on hormone blockers or taking estrogen. It is important not to overgeneralize. The assumption that all male-bodied people are taller, stronger, and more highly skilled in a sport than all female-bodied people is not accurate.”
There are other important facts, not opinions, that keep getting lost in Pierre:
• Transgender individuals enjoy (or should enjoy) the same rights that all of society enjoys.
• Transgender student-athletes should have equal opportunity to participate in sports. Policies governing sports should be based on sound medical knowledge and not on the whims of our governor who is so pumped full of political steroids that she produced a slick television ad that appeared in markets nationwide to announce she had once again introduced a piece of garbage bill in Pierre.
• Policies governing sports should be objective, workable and practicable; policies governing the participation of transgender students in sports should be fair in light of the tremendous variation among individuals in strength, size, musculature and ability.
You’ve got to hand it to South Dakota, though. We have a “never say die” attitude when it comes to trying to discriminate against our small-in number transgender population. The ACLU reminds us of that in a recent press release:
“After the SDHSAA enacted its inclusive transgender sports policy, lawmakers tried to meddle with the association’s authority, first with House Bill 1161 in 2015 and then with House Bill 1111 in 2016. Five additional bills – House Bill 1195 in 2015, House Bill 1112 in 2016, Senate Bill 49 and House Bill 1225 in 2019 and House Bill 1217 – would have restricted participation in high school athletic activities to the gender listed on a person’s birth certificate. None of the bills were signed into law.”
I haven’t yet mentioned that transgenders are being attacked this year on another front: bathrooms. House Bill 1005 designates school bathrooms, locker rooms or sleeping rooms on overnight trips as single sex, defining sex as that which was assigned at birth. This means transgender students would be prohibited from using the space that affirms their gender identity. Policies that single out transgender youth like this violate federal and constitutional law. All of this also flies in the face of the Vermillion School District’s recently approved anti-discriminatory “Gender Equity and Access” policy.
The new guideline is designed to help the school district protect the civil rights of transgender students and addresses the issue of gender identity in school accommodations, including restrooms.
South Dakota lawmakers attempted to pass similar, harmful legislation in 2016 with House Bill 1108, which Gov. Dennis Daugaard vetoed, and Senate Bill 115, which was withdrawn at its first hearing. So, be aware – transgender students are in lawmakers’ crosshairs on two fronts currently and we’ll address the bathroom issue in the future as things develop in Pierre.
Last year, we urged the Legislature to kill the governor’s discriminatory, needless legislation. We again urge Noem to stop wasting our time and recognize that any further action by her likely will be met by litigation.
She should take her ball, go home and stop using our transgender population as a political punching bag.