David Lias

Remember a couple weeks ago when we talked about the piece of trash legislation -- HB1217 -- with the fancy title: the “Women’s Fairness In Sports” bill?

And remember how Gov. Kristi Noem giddily announced she would soon sign it into law?

Well, she changed her mind. Who knows why. Maybe advisors warned her that organizations and businesses more progressive-minded than South Dakota were demonstrating their progressiveness by drawing a big red circle around our state and saying, effectively, “We’re staying away from this place.”

So, she didn’t sign the bill. She didn’t veto it, either. Well, she didn’t completely veto it, in her words. Instead, she sent it back to the Legislature, probably because of the big red circle mentioned above. Lawmakers are slated to meet for one final day next week.

The version she sent back is heavily amended, it appears, in an attempt to keep South Dakota out of trouble with the NCAA.

Her version of the “Women’s Fairness In Sports” bill, however, would not touch athletic events for students ages K through 12.

To review: HB1217 is a piece of garbage bill that would prevent transgender girls and women from playing on sports teams that match their gender identity. The bill was killed by the Senate State Affairs Committee on March 3, but the next day it was “smoked out” and given new life and approved by the South Dakota Senate on March 8.

Noem apparently thought she could bully her way into the legislative process by rewriting the bill to get what she wants from the Legislature, by demanding that the Legislature come up with a new bill that matches her “style and form” revisions and that if they don’t, she’s going to call them back INTO A SPECIAL SESSION. TO ACT ON A PIECE OF GARBAGE BILL.

Here’s the result of her tinkering so far:

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, is mad.

The few Democrats in the South Dakota Legislature, which opposed the bill to begin with, haven’t changed their stance and are still mad.

Republican members of both legislative houses, which were blind-sided by Noem, are 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, is mad.

Transgender and LGBTQ citizens in South Dakota and across the nation are mad.

Having painted herself into a corner, Noem announced Monday that she was creating a “Defend Title IX Now” Coalition to defend fairness in women’s sports.

“Once we have enough states on board – a coalition large enough where the NCAA could not possibly punish us all – then we will be able to guarantee fairness at the collegiate level,” she said.

This is Noem’s way to make happy the members of her party that she angered by scratching out collegiate athletes from HB1217. Her rather bizarre Monday press conference, which included participation by retired pro athletes, high school athletes and rodeo cowboys, has yet to receive glowing praise. People with common sense in our nation know Title IX is working, it doesn’t need defending and Noem’s “Defend Title IX Now” Coalition is nothing but political theatre.

Monday night, Noem tried to get Tucker Carlson of FOX News to throw her a lifeline to help pull her out of the corner in which she’s painted herself. For most of their seven minutes together on national television, however, Carlson seemed confused with Noem’s responses to his questions and he was clearly trying his best to help her.

One way in which Carlson tried to help was by creating a false premise right from the beginning, telling his viewers that there was a big push nationally to “allow biological males to compete in girls’ sports.” This is particularly unpopular with the public and particularly unpopular in South Dakota, he added. (Hang on, we’ll touch on this later in this column).

Noem told Carlson that without her tinkering of HB1217, the legislation “wouldn’t solve the problem” and would “allow the NCAA to bully South Dakota and would prevent women from participating in collegiate sports.”

She also said something that I think sensible people can agree with. HB1217, Noem said, “is a trial lawyer’s dream. It creates more litigation and regulation that’s impossible to comply with.”

The governor’s tinkering doesn’t solve that problem. HB1217 is still a trial lawyer’s dream because it’s an incredibly bad potential law.

The governor may have gotten her acronyms mixed up as she may have been rattled a bit by actually having to answer challenging questions on FOX News, stating that “legal scholars” have told her for months that leaving collegiate sports in the bill means “we will get punitively challenged by the NCAA and then we’ll have to fight them in a court district that is not friendly to winning.”

She later told Carlson that she announced the formation of her coalition earlier that day because she’s tired of the NCAA threatening and bullying states like South Dakota, a state that (in my words, not hers) finds no problem in bullying transgender athletes.

I’m not sure South Dakota would ever get into a legal challenge with the NCAA in a court that “is not friendly to winning,” meaning, I guess, that judges actually will recognize the federal protections that all athletes enjoy, transgender or not, provided by Title IX, the Equal Protection Clause of the 14th Amendment, various hate prevention acts and non-discrimination laws.

Our state may get dragged into court by the American Civil Liberties Union (ACLU), however, if this bill becomes law in South Dakota. It has stated that it is currently weighing all options to ensure the constitutional rights of transgender women and girls in South Dakota are upheld.

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 this week 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 are getting lost in Pierre right now:

• Transgender individuals 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 (not the opinion of Herschel Walker.)

• 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.

HB1217, in its now revised form, should once again be killed by the Legislature on its final day. The governor should also 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, let the session end and stop using our transgender population as a political punching bag.

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