Bowing To Corporate Demands For Watered-Down Bill, Gov. Kristi Noem Sells Out Women’s Sports

Bowing To Corporate Demands For Watered-Down Bill, Gov. Kristi Noem Sells Out Women’s Sports

Given the reality of the NCAA’s policy, South Dakota Gov. Kristi Noem’s proffered explanation for excluding women collegiate athletes from the protections of H.B. 1217 is beyond misleading.
Margot Cleveland
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On Friday, South Dakota Gov. Kristi Noem balked on signing House Bill 1217 when the bill to promote fairness in women’s sports crossed her desk. But instead of vetoing the legislation, Noem returned the bill to the House with what she called “recommendations as to STYLE and FORM.” The Republican governor’s spin, however, cannot withstand scrutiny—most specifically her claimed reasoning for removing collegiate athletics from the bill’s protections.

As finalized by the South Dakota legislature, Section 1 of H.B. 1217 provided that athletic teams and sports in the state, including at institutions of higher education, must be expressly designated as male, female, or coeducation. It also stipulated that teams or sports designed as female must be “available only to participants who are female, based on their biological sex.”

After promising to sign H.B. 1217, Noem instead took to Twitter on Friday to state why she had changed her mind and instead returned the bill to legislators for modifications. Noem elaborated on her reasoning in a letter to legislators.

While Noem framed her requested changes as concerning “style” and “form,” the Republican governor sought many amendments, including completely striking two full sections of the proposed bill. The original consisted of only four sections in total.

First, Noem requested the legislature strike Section 2 of the bill, which would have required students to annually verify their age, biological sex based on genetics and reproductive biology, and attest that they had not taken performance-enhancing drugs, including anabolic steroids, in the preceding 12 months.

Noem justified deleting this provision because it created an “unworkable administrative burden on schools, who under its terms must collect verification forms from every student athlete every year.” This rationale seems suspect given that schools usually already collect parental permission forms and medical certification to allow students to participate in athletics every year. Further, nothing in Section 2 requires schools to “monitor these disclosures throughout the year,” although Noem suggested it did.

The most striking changes Noem demanded, however, came in her insistence that the legislature strike collegiate athletes from the bill’s protection and eliminate Section 4’s promise of a remedy to girls and women harmed in a violation of the bill, or who were retaliated against for complaining about violations of the law. Let’s break these changes down a bit, because they render the entire proposal meaningless.

As drafted by the South Dakota legislature, Section 1 of the bill mandated that athletic teams or sports, at the elementary, secondary, and collegiate level, designated as female be “available only to participants who are female, based on their biological sex,” as verified by the students’ parents (or, if they are over 18, the student), based on “genetics and reproductive biology.” Then, in Section 4, the South Dakota legislature created a “cause of action,” or a right to sue, entitling students deprived of athletic opportunities or otherwise harmed as the result of a Section 1 violation to sue the school.

In other words, Section 1 demanded schools—including colleges—limit women’s sports to women. If an education institution violated that mandate and allowed a male student to join a female team, Section 4 provides that a female athlete injured by that violation could sue the school and obtain an injunction to prevent a continued violation and damages to remedy the harm.

Section 4 added a second protection for South Dakota student athletes: It also protected students from retaliation if they report violations of the act to a school representative, athletic association, or a state or federal governmental entity with oversight authority. Thus, for instance, if a female basketball player complained to an athletic department that a coach had allowed a male athlete to join her team, and the school responded by banning the complaining student from school-sponsored sports, the female student would be entitled to sue the school for retaliation.

In sending the bill back to the state legislature, Noem made two requests related to these interrelated provisions:  She excluded collegiate athletes from the bill’s coverage and then directed the legislature to strike, or delete, Section 4 in its entirety.

In other words, Noem asked the South Dakota legislature to amend Section 1 so that the bill applied only to elementary and high school student athletes, while then denying those students any remedy for violations of the law. All that would remain, then, if the state legislature adopts Noem’s amendments, would be these two sections:

Noem’s requested revisions would thus profess in Section 1 that South Dakota elementary and high school girls’ sports are limited to female athletes, while providing girls harmed by violations of the law no remedy.  In fact, by the protections of Section 4, South Dakota schools would be free to retaliate against female athletes who complain about violations of Section 1.

It is bad enough that in sending the Act to Promote Continued Fairness in Women’s Sports back to the legislature, Noem pretended to retain protection for elementary and high school girls in Section 1, only to then leave them without a remedy, even for retaliation. What is worse, though, is Noem’s decision to exclude collegiate athletes from H.B. 1217’s protections and justified that omission with a misleading justification.

In both her Twitter thread and her letter to the legislators, Noem justified excluding collegiate athletes from H.B. 1217, by writing:

I am also concerned that the approach House Bill 1217 takes is unrealistic in the context of collegiate athletics. In South Dakota, we are proud of our universities’ athletic programs, and in particular the great strides we have taken to gain national exposure and increase opportunities for our next generation over the past two decades.

South Dakota has shown that our student athletes can compete with anyone in the country but competing on the national stage means compliance with the national governing bodies that oversee collegiate athletics. 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.

Noem’s explanation would lead one to believe that H.B. 1217 conflicts in some way with the governing regulations of the National Collegiate Athletic Association (NCAA) and that if the bill became law, South Dakota collegiate athletes would be barred from competing in NCAA events and tournaments.

To the contrary, NCAA regulations provide that if a male competes on a female team, that makes the team a “mixed team,” which is ineligible to compete for a women’s NCAA championship. The NCAA does, however, allow a male “student-athlete being treated with testosterone suppression medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism,” to compete on a women’s team after “completing one calendar year of testosterone suppression treatment.”

However, nothing in this NCAA policy requires a college or university to treat a male student-athlete as female. Given the number of religiously affiliated colleges and universities participating in NCAA sports, any such mandate would face tough opposition and likely be unworkable.

The NCAA also does not ban collegiate athletes from events or championship competitions if their schools do not allow transgender athletes to compete on teams of the opposite sex. That is why, when Idaho passed a bill last year similar to the bill pending in South Dakota, nothing of the sort happened to Idaho.

Sure, the NCAA issued a statement calling the law “harmful to transgender student-athletes” and supposedly in conflict “with the NCAA’s core values of inclusivity, respect and the equitable treatment of all individuals.” But Idaho’s law did not prevent its collegiate athletes from continuing to compete in NCAA events, and neither would passage of H.B. 1217 harm South Dakota student-athletes.

Given the reality of the NCAA’s policy, Noem’s proffered explanation for excluding women collegiate athletes from the protections of H.B. 1217—that “competing on the national stage means compliance with the national governing bodies”—is beyond misleading.  So too is the governor’s that the changes proposed go only to “STYLE and FORM,” when in fact, striking Section 4 from the bill, eliminates any teeth to the protections elementary and secondary female athletes have by removing the right for girls to sue to vindicate their rights.

The Federalist’s requests for comment from Noem’s office were deflected to a press conference Noem will hold on the subject today.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

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