South Dakota Gov. Kristi Noem raised some valid concerns when she returned House Bill 1217 to the state legislature for “style and form” changes. But two of the proposed amendments to the bill that legislators drafted to prevent males from competing as females in athletic events, coupled with the spin since Noem announced she would not sign H.B. 1217 as written, give the governor’s game away: She caved.
As I explained earlier this week, H.B. 1217 originally consisted of four sections, with Section 1 providing that elementary, secondary, and collegiate athletic teams must be defined as male, female, or coeducational, then further stating that teams or sports designated as female are “available only to participants who are female, based on their biological sex.”
Section 2 then contained reporting requirements that mandated parents (or students for those older than 18) verify each year the student-athlete’s age, biological sex based on genetics and reproductive biology, and whether the student has taken any “performance-enhancing drugs, including anabolic steroids” in the prior year. Under Section 2, a sponsoring organization, if they had “reasonable cause” to believe the information was false, could remove the student from the team and prohibit further participation.
Simple Changes Would Fix Noem’s Stated Concerns
Noem said these annual reporting requirements were burdensome and expressed concern that “performance-enhancing drugs” remained undefined. She thus proposed striking Section 2 in its entirety and leaving Section 1 to handle the determination of biological sex “as reflected on the birth certificate or affidavit provided upon initial enrollment in accordance with §13-27-3.1.”
Had Noem limited her “style and form” changes to this minor modification to Section 1 and omitting Section 2 of the bill, her claim to have problems with the language of the law would have carried more weight. While South Dakota could have defined “performance-enhancing drugs” in regulation, the main thrust of the law would have remained: protecting female opportunities in athletics.
That goal could still be achieved in South Dakota without annually verifying a student’s age, biological sex, and confirmation of not using performance-enhancing drugs. Basing sports’ participation on biological sex as recorded on a birth certificate “provided upon initial enrollment” could suffice given that South Dakota §13-27-3.1 currently requires parents to provide their child’s birth certificate when the child starts school.
Noem’s modification thus allowed a simple workaround that addressed her concerns while maintaining the biological sex standard for athletic participation. A further tweak in the language, specifying that the birth certificate provided must be a copy of the one originally issued by a state, could ensure the document presented is not one from a state that reissues birth certificates asserting a false sex.
Noem Asked to Gut the Bill, Not Technical Fixes
The problem, however, is that Noem did two more things that completely gutted the proposed statute. First, she omitted college students from the protections of the law. Second, she directed the legislature to strike in its entirety Section 4 of the bill.
Let’s take the second amendment first. Section 4 of the bill provided a private right of action for students deprived of an athletic opportunity or otherwise harmed by violations of H.B. 1217. The right to sue under Section 4 was broadly written and provided for both injunctive relief and “monetary damages, including for psychological, emotional, and physical harm suffered, reasonable attorney’s fees and costs, and any other appropriate relief.”
The governor called this provision “a trial lawyer’s dream” and expressed concern over costly litigation every time a student failed to make a sports team then later claimed another athlete had used performance-enhancing drugs. Again, the governor raises some valid concerns, although why she didn’t raise these with the legislators months ago seems suspect. But Noem’s legitimate concerns do not justify axing a private right of action completely, as without a right to sue, a girl or young woman remains without a remedy should a school refuse to comply with the law.
Noem’s Changes Would Make the Bill Toothless
Had Noem truly sought to “fix” the law, as opposed to rendering it meaningless, she would have presented “style and form” recommendations to Section 4 that narrowed the scope of the private right of action. By deleting Section 2’s reporting requirement on performance-enhancing drugs, the governor already addressed the concern that that provision would trigger a flurry of lawsuits.
Also, if Noem remained concerned over creating an incentive to litigate, a “style and form” revision that limited the private right of action to a claim for injunctive relief would eliminate the money motive. This amendment would then allow girls and women facing male competitors, in violation of the law, to sue for an injunction or a court order, requiring the school district or athletic program to comply with Section 1’s mandate that female sports or teams be limited to female athletes.
Without Section 4, H.B. 1217 is toothless. And there really is no legitimate reason for completing eliminating the right for a female student-athlete to sue under the law when Noem could have instead proposed a narrower private right of action, whether for injunctive relief only or including a limited monetary award, such as for a lost scholarship opportunity.
Eliminating collegiate women from the bill, however, waved the flag of surrender. While bad enough in principle, Noem’s spin, insincerity, and now snark at those criticizing her decision have made things worse.
Substituting Spin for Honesty
The spin began immediately when Noem returned the bill to the House with a letter professing that “the approach House Bill 1217 takes is unrealistic in the context of collegiate athletics.” Noem then wrote that “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.”
Removing collegiate athletes from the protections of H.B. 1217, Noem’s statement thus implied, was necessary to ensure South Dakota student athletes could continue to compete in National Collegiate Athletics Association (NCAA) events. However, as I detailed earlier this week, the NCAA does not require collegiate teams to open women’s teams to male athletes, but instead carves out a narrow exception that permits—but does not mandate—male athletes to compete as women after they have been on testosterone suppression treatments for a full year.
Noem’s statement did more than merely misrepresent the NCAA’s policy; it suggested that female collegiate athletes from South Dakota would be deprived of the opportunity to play college sports if H.R. 1217 applies to post-secondary institutions. The NCAA, however, has never suggested (publicly at least) that it would punish female athletes for laws their home states pass by banning them from NCAA-sanctioned events.
Yet Noem continued to push this false fear at her press conference earlier this week, stating: “If South Dakota passed a law that’s against [the NCAA] policy they will likely take punitive action against us. That means they could pull their tournaments from the state. They could pull home games. They could even prevent our athletes from playing in their leagues. That’s their prerogative. So a fight that doesn’t truly protect women’s sports and doesn’t allow women to compete will ultimately hurt South Dakota families.”
Refusing to Answer Legitimate Questions
Then, when she appeared on Tucker Carlson’s TV show, Noem again pushed that talking point when she explained that including college sports in the South Dakota bill “would only allow the NCAA to bully South Dakota and it would actually prevent women from being able to participate in collegiate sport.”
Noem’s claim was shocking enough that Carlson interrupted her for clarification: “How would this bill prevent women from playing in South Dakota?” Noem sidestepped the question, however, and stressed that “legal scholars” were convinced that South Dakota could not win in a lawsuit against the NCAA.
I reached out to Noem’s communications director, Ian Fury, for comment. But while Fury had time to blitz pro-Noem media with a vent about “conservative cancel culture,” he did not have enough bandwidth to clarify how H.B. 1217 would prevent South Dakota women from participating in collegiate sports.
More significantly, I asked whether “the NCAA [had] indicated college athletes from South Dakota would be prevented from participating in NCAA sponsored events.” Or had the NCAA threatened to deny South Dakota hosting privileges?
The answers to these questions matter, and asking them is not bullying Noem, as she suggested on Carlson. Either the NCAA inappropriately threatened to punish female college athletes or Noem misrepresented the justification for her decision and caved due to the economic harm to her state.
Just Tell the Truth, Kristi Noem
If so, it would be understandable, but at least be honest. Tell America that her obligation is to her South Dakota constituents and that the Chamber of Commerce, Amazon, and the NCAA threatened the economic wellbeing of her citizens and that given that no biological males currently compete in NCAA female sports in South Dakota, she must put the pocketbook concerns of South Dakota families ahead of signing H.B. 1217.
Many on the right would still be disappointed, even angry. After all, if you can’t remain firm over something as scientifically undisputable as biological sex, what hope is there left for our country? Also, if moms and dads throughout America are fighting school boards and school districts, only to be castigated as bigots, and if individuals, like Jack Phillips, and less powerful groups, like the Little Sisters of the Poor, don’t capitulate to economic pressures, our powerful leaders can do better.
While Noem understandably prefers to avoid facing the economic brunt of a showdown with the NCAA, if she led, others would follow. That is what conservatives want. That is what they demand. Name names. Expose the threats. Stand firm and beckon others to the battle against the NCAA and woke corporate America. Truly lead the coalition.
If the NCAA retaliates, publicly call on Texas and Florida—two athletic powerhouses—to decline to host tournaments. Ask religious colleges and universities (most of which have in force a similar sex-based rule for athletic competition) to do so too. We may not be able to win against the NCAA in court, but we don’t need to. Governors like Noem just need to lead.
If Noem isn’t up for the task, or if she believes her duty to her South Dakota constituents demands she put their monetary interests first, fine. But don’t wave the white flag of surrender and tell me you’re merely waving to your coalition to join you.