Here’s why Noem fought South Dakota’s bill banning biological males from women’s sports
Mary Margaret Olohan, DCNF
- Republican South Dakota Gov. Kristi Noem has faced heavy criticism for failing to certify a bill banning biological males from playing women’s sports.
- The governor has steadily insisted the bill would subject South Dakota to lawsuits the state could not win and said she seeks to “protect girls” through other measures.
- “Since November, my team and I have worked to find the best way to defend women’s sports effectively — not just to feel good, but to do good,” Noem wrote in National Review op-ed Tuesday. “We have to be able to win in court.”
Republican South Dakota Gov. Kristi Noem has faced heavy criticism over her opposition to H.B. 1217, a bill to ban biological males from playing women’s sports. The governor has steadily insisted the bill would subject South Dakota to lawsuits the state could not win and said she seeks to “protect girls” through other measures.
Noem continues to push back on assertions that she caved to pressure from groups like the NCAA, emphasizing that she wants long-term solutions that will protect South Dakota girls.
“Since November, my team and I have worked to find the best way to defend women’s sports effectively — not just to feel good, but to do good,” Noem wrote in a Tuesday National Review op-ed. “We have to be able to win in court.”
“It is for that reason that I asked the South Dakota state legislature to make revisions to HB 1217,” Noem wrote. “As passed, this bill was a trial lawyer’s dream. It would have immediately been enjoined had I signed it into law, meaning that no girls in South Dakota would have been protected.”
H.B. 1217: Where It’s At
The Daily Caller News Foundation previously reported that Noem was wavering in her support for the legislation due to pressure from various interest groups in South Dakota. Though Noem said March 8 that she was “excited” to sign the legislation, she sent the bill back to lawmakers with “style or form” revisions — otherwise known as a style and form veto.
Critics accused the governor of “political theater” and caving to pressure, but Noem insisted the bill was a legal nightmare.
“I’m still incredibly excited to sign this bill,” Noem said March 22.
"You're preaching my sermon. Only girls play girls' sports." pic.twitter.com/PhgpLMGsDG
— Governor Kristi Noem (@govkristinoem) March 23, 2021
On Monday, South Dakota’s House rejected Noem’s style and form veto, sending the bill back to Noem, who returned the bill to the House the same day with a failure to certify, the Rapid City Journal reported. South Dakota House Speaker Spencer Gosch ruled Thursday that Noem’s action counted as a veto, but the House vote to override Noem’s action failed.
Before Monday, Noem repeatedly emphasized that she had not yet vetoed H.B. 1217. She again insisted Monday that her decision to return the bill to the House with a failure to certify did not equate to a veto.
Spokesman Ian Fury told the DCNF Tuesday that a “veto is what happens when you don’t want a bill.”
“She did want this bill,” he said.
Noem will now work with lawmakers to schedule a special session in May or June, Fury said. In the special session, he told the DCNF, lawmakers will be able to revisit the bill. Noem will still expect her suggestions to be applied before H.B. 1217 can pass.
The Style And Form Veto
In a Monday letter to lawmakers, Noem reiterated her concerns about H.B. 1217 and noted that though her critics point out that several other states have “taken action on this topic,” the legislation passed in other states is different than South Dakota’s bill.
Very glad @BillLeeTN signed this crucial legislation to protect fairness in women's sports!
My proposed changes to the SD legislature are virtually the same as what Gov. Lee just signed, only slightly stronger. Let's get it done so that we can protect our girls. https://t.co/yFu5ntCCCN
— Governor Kristi Noem (@govkristinoem) March 28, 2021
The governor raised four concerns in her “proposed style-and form revisions” which she again highlighted in her Monday letter.
A style and form veto is an amendatory veto “unique to south Dakota” that “no other state has seen fit to follow,” according to a memo from the South Dakota Legislative Research Council.
The memo notes that there have been 89 style and form vetoes since 1977 but that the Legislature has failed to concur with the governor’s suggested changes on only four occasions: on two of these occasions, the governor then signed the bill, and on the other two occasions, the governor vetoed the legislation.
The state legislature ultimately has the final say in whether the governor’s requested changes “go beyond style and form.”
“If the Legislature believes that the proposed amendments are substantive, it need merely not approve them,” the memo said. “Legislative concern about whether the Governor’s suggested style and form corrections were actually substantive amendments may have contributed to the four occasions, cited earlier, when the Legislature failed to concur on a style and form veto.”
“Bills with errors in style or form may be returned to the Legislature by the Governor with specific recommendations for change,” reads Article IV, Section IV of South Dakota’s Constitution. “Bills returned shall be treated in the same manner as vetoed bills except that specific recommendations for change as to style or form may be approved by a majority vote of all the members of each house. If the Governor certifies that the bill conforms with the Governor’s specific recommendations, the bill shall become law. If the Governor fails to certify the bill, it shall be returned to the Legislature as a vetoed bill.”
Noem’s Style And Form Suggestions
The first of Noem’s issues with H.B. 1217 was the bill’s “performance-enhancing drug ban section,” as she noted in a Monday letter to lawmakers. Noem highlighted that the drug ban is not limited to protecting girls sports.
“Presumably, this requirement was included to address a student taking these drugs as a part of a gender transition, but House Bill 1217 is not limited in this way,” she said in an earlier press release announcing her suggestions. “Rather, if a male student athlete failed to make the football team, and later learned that another student on the team was taking steroids without disclosing it, the student who didn’t make the team would be entitled to sue both the school and the steroid-using student for damages.”
The governor also took issue with the bill’s “cause of action section,” which she said would have “turned any failure to make a sports team into a litigation hazard.”
She further cited the bill’s “onerous paperwork requirement, which required every parent of a school-aged child to turn in paperwork every year that identified whether the parent’s child was a boy or a girl and to address whether their child has taken performance enhancing drugs in the last year.”
Her fourth concern was the bill’s “provision on applying the law at the collegiate level.”
“I am also concerned that the approach House Bill 1217 takes is unrealistic in the context of collegiate athletics,” Noem previously said in the press release. “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.”
— Governor Kristi Noem (@govkristinoem) March 8, 2021
“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,” she continued. “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 Executive Orders
The governor also sent a second letter to lawmakers Monday in which she announced two executive orders: one to “protect fairness in K-12 athletics” and another to “do so in college athletics.”
“Given the legislature’s failure to accept my proposed revisions to HB 1217, I am immediately signing two executive orders to address this issue,” she tweeted Monday, “one to protect fairness in K-12 athletics, and another to do so in college athletics.”
Only girls should play girls’ sports. Given the legislature’s failure to accept my proposed revisions to HB 1217, I am immediately signing two executive orders to address this issue: one to protect fairness in K-12 athletics, and another to do so in college athletics. (1/3)
— Governor Kristi Noem (@govkristinoem) March 29, 2021
“Since Governor Noem could not constitutionally sign the bill, she took the only action that she legally could take,” Fury told the DCNF on Tuesday, “issuing executive orders to protect women’s sports at both the K-12 and collegiate levels until the legislature can pass legislation superseding those EO’s.”