South Dakota Republican Gov. Kristi Noem on Friday suggested language changes in a bill to ban transgender girls and women from participating in girls’ or women’s sports leagues. The changes would limit the ban to high schools and elementary schools, excluding college sports from the proposal.
The Republican governor had initially tweeted she was “excited to sign” the bill after it passed the Legislature but sent the bill back to lawmakers with suggestions to change its language. The governor's move, known as a style and form veto, amounted to a setback for the bill, but still kept it alive. A majority of both chambers of the Legislature can approve it on March 29.
Noem's proposal would limit the ban to high school and elementary sports and exclude collegiate athletics. Opponents of the bill had warned it would cause the state to lose out on millions of dollars if it prompted the NCAA to withdraw sports tournaments from South Dakota, though it was not clear if Noem's proposed changes would ultimately deter that.
“I am also concerned that the approach House Bill 1217 takes is unrealistic in the context of collegiate athletics,” Noem said in a letter sent to lawmakers.
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Legislatures in more than 20 states have proposed restrictions on athletics or gender transition surgeries for transgender minors this year. But Noem's reversal showed that even in conservative states with an appetite for enacting laws that discriminate against transgender people, Republican lawmakers are weighing the financial fallout. The Republican governor of only one state — Mississippi's Tate Reeves — has signed such a ban into law.
Noem is a rising force among conservatives and has been considered a potential Republican pick for president in 2024, aligning herself closely with former President Donald Trump.
Advocates for transgender children have said the law could have devastating effects, leading to bullying and depriving them of the benefits of participating in sports.
“We’re really calling on Gov. Noem and legislators to recognize the serious physical, emotional and psychological harm that this would cause trans kids across South Dakota,” said Susan Williams, who heads the Transformation Project. “In short, it threatens their lives.”
Advocates are lobbying the governor to veto the bill entirely and have held protests against it. But Williams said they have been unsuccessful in setting up a meeting with the governor to discuss the bill.
Sioux Falls Sports Authority, the business organization that hosts NCAA tournaments in the city, warned lawmakers that the ban would jeopardize the city’s chances of hosting future competitions. When the organization bids to host NCAA tournaments, it must complete a questionnaire asking whether any state or local laws are discriminatory. If the proposed bill becomes law, the organization says it would need to disclose that the state has discriminatory laws.
David Zimbeck, a lobbyist for the Sioux Falls Sports Authority, told lawmakers that an annual NCAA basketball tournament brought in $5 million, while other tournaments for sports including volleyball and hockey bring in $2.5 million. Up to 100 full- and part-time jobs were at risk, he said.
The governor continued to defend the bill, saying, “I believe that boys should play boys’ sports, and girls should play girls’ sports.”
Noem said she agreed with arguments that proponents made — that transgender girls, because they were born male, are naturally stronger, faster and bigger than those born female. But opponents say such proposals violate not only Title IX of federal education law prohibiting sex discrimination but also rulings by the U.S. Supreme Court and 11th U.S. Circuit Court of Appeals.
There are currently no transgender girls competing in girls’ high school sports, according to the South Dakota High School Activities Association, which has a policy for evaluating applications from transgender athletes on a case-by-case basis. The association reported that only one transgender girl has ever competed in girls’ sports in the state. She has since graduated and did not disrupt the competitive fairness of other girls, according to the association.
The bill’s sponsor, Republican Rep. Rhonda Milstead, said Noem was overstepping her powers in using the style and form veto to make broad changes to the bill. Such vetoes are usually used to clean up technical language, but Noem’s proposal strikes two sections entirely and changes the reach of the bill.
“She has literally gutted the bill and rewritten the bill," Milstead said.
While the ban — known as House Bill 1217 — sailed through the House, Republicans in a Senate committee initially rejected it, reasoning that its passage would bring up a broad range of problems for the state — from potentially causing the NCAA to shy away, to dragging the state into costly litigation and saddling schools with the administrative burden of requiring proof of every athlete’s sex at birth. It was later revived in a legislative maneuver on the Senate floor and passed on March 8.
Noem also tried to clean up some of those issues in the bill, striking sections that would allow students to sue schools for violations of the law and require schools to annually collect proof of athletes' sex at birth.
If Noem's changes are not approved by majorities in the Legislator, it would die. However, lawmakers could also enact the bill as originally-passed with a two-thirds vote in both chambers.