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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 require 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, both Republicans, the measure would apply to all K-12 and collegiate athletic events in South Dakota.
Amid concerns over economic backlash and the potential for South Dakota to lose sporting events such as NCAA tournaments, Noem sent 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.
The changes the governor wants would require a simple majority of the state Legislature.
Milstead, who spoke at the Conservative Political Action Conference last month about what she called a "fairness in women's sports" issue, said she vehemently disagrees with the governor's insistence that the bill needs modifications. 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 make 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."
When the bill cleared the Senate in early March, Noem expressed her excitement to sign it into law.
I believe that boys should play boys’ sports, and girls should play girls’ sports. I'm returning House Bill 1217 with the following recommendations as to STYLE and FORM. (1/)
— Governor Kristi Noem (@govkristinoem) March 19, 2021
But this week, she told the Argus Leader she'd since determined there were problems with the bill. In her statement Friday, she said that after consulting with attorneys and considering the emotional challenges facing young people, she decided 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."
Under HB 1217 as passed by the Legislature, students who want to join athletic programs would need to submit statements verifying their age and biological sex and affirming they hadn’t taken any steroids in the 12 months preceding their competition. The statement would have to be signed by a parent if the student was 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 opposes the bill, since it would affect a very small number of student-athletes at the K-12 level: "Right now, zero," he said.
"Our policy has worked," Swartos said. "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."
"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 a statement from Jett Jonelis of the American Civil Liberties Union of South Dakota. "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 go beyond minor, housekeeping updates. Rather, they substantively change what the bill does, she said.
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.
The only bill to make it nearly as far as this one was HB 1008 in 2016, known as the “bathroom bill,” which would have restricted bathroom and locker room use. Gov. Dennis Daugaard, a Republican, 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 drove her decision, but economy boosters 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 effects to the state may be on the horizon.
The NCAA has inclusion policies for transgender athletes that conflict with the legislation. NCAA sports teams are required to certify there are no laws or ordinances affecting the welfare of student-athletes or staff.
David Zimbeck, a lobbyist for the Sioux Falls Sports Authority, shared concerns that the NCAA could pull out of the state because of a 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 the Summit League tournament, Division I women’s basketball and hockey regionals, Division II wrestling, basketball and volleyball championships.
The state could lose out on bids it seeks or 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.
This article originally appeared on Sioux Falls Argus Leader: South Dakota Gov. Kristi Noem won't sign transgender sports bill