South Dakota Governor Kristi Noem re-entered the fray over trans student-athletes by releasing draft legislation of a new bill designed to ban transgender students from athletic competition at the scholastic and collegiate levels Tuesday.
Noem said in a statement that the new measure cleans up the technical issues that led to a veto on House Bill 1217, back in March 2021.
“This is about fairness,” Noem reaffirmed to South Dakota State News. “Every young woman deserves an equal playing field where she can achieve success. Women have fought long and hard for equal athletic opportunities, and South Dakota will defend them, but we have to do it in a smart way.”
The draft has two crucial changes. The first defines “biological sex”.
Any interscholastic, intercollegiate, intramural, or club athletic team, sport, or athletic event that is sponsored or sanctioned by an accredited school, school district, an athletic association or organization, or an institution of higher education under the control of either the Board of Regents or the Board of Technical Education must be designated as one of the following, based on the biological sex at birth of the participating athletes: (1) Females, women, or girls; (2) Males, men, or boys; or (3) Coeducational or mixed......For purposes of this section, biological sex is either female or male as described by the sex listed on the athlete’s official birth certificate issued at or near the time of the athlete’s birth.
The second change involved who could initiate legal action and who couldn’t. It would allow a cisgender student-athlete the right to sue, and would allow a school district to do the same, against a challenge or change to the definition of biological sex in legislation.
If an athlete suffers direct or indirect harm as a result of a violation of section 1 of this Act, that athlete has a private cause of action for injunctive relief and any other equitable relief available under law, against the accredited school, school district, athletic association or organization, or institution of higher education under the control of either the Board of Regents or the Board of Technical Education that caused the harm.
However, for a transgender student who raises a legal challenge:
No governmental entity, accredited school, school district, or institution of higher education may be liable to any athlete for its compliance with section 1 of this Act.
In contrast, a cisgender student-athlete or a school district could enact civil action against “any direct or indirect harm as a result of section 1 of this Act being violated.”
The bill also says that in the event of such action, the plaintiff in the scenario would be entitled to, “to reasonable attorney’s fees and costs.”
The Reality: Running afoul of Washington D.C. and Indianapolis
Noem’s “smart way” looks daft when you consider how anti-trans measures fare when challenged.
In March 2020, Idaho’s much-discussed HB500 was signed into law, and then blocked by a federal court decision that same August. A similar victory was won in July in West Virginia. Another lawsuit was filed last month by a transgender boy in Tennessee.
The law passed in Florida in May, and signed by that state’s governor and 2024 presidential prospect Ron DeSantis on the first day of Pride, also faces a lawsuit as does similar actions in Arkansas and Mississippi.
The contention of all of the suits centers around the law as a violation of Title IX, which prohibits discrimination based on sex. Recent rulings such the June 2020 U.S. Supreme Court decision in Bostock v. Clayton County upheld that even a Supreme Court seen as conservative would oppose the discrimination HB 1217 tries to legalize.
“These laws are telling transgender young people that they don’t matter, telling young transgender people that they don’t exist,” Human Right Campaign President Alphonso David told ABC News in June. “That is the message that these elected officials are sending, which is reprehensible and dangerous.”
Equality South Dakota affirmed a similar view on Twitter.
Trans lives in South Dakota are not up for debate. Trans girls are girls. Trans women are women.— Equality South Dakota (@EqualitySD) December 14, 2021
There is also the sporting reality surrounding the legislation’s intent to challenge the NCAA’s 10-year-old policy that provides a path to participation for transgender student-athletes. Should the NCAA back their previous statements for inclusion with, for example, a ban on championship events in South Dakota, there is a the threat of lawsuit by a school in South Dakota or by individual student-athletes.
Before you think, “like an NCAA Championship event would be in South Dakota”, take a look at the currently Football Championship Subdivision playoff bracket. South Dakota State is in this season’s semifinals and hosted an opening round playoff game.
In the COVID-forced, split-abbreviated, fall-spring FCS season in 2020-2021, the Jackrabbits hosted three rounds of playoff games that drew some nice crowds in Brookings. Sports crowds translate into money spent at hotels, restaurants, and pubs.
Business interests in the state are largely opposed to this measure. South Dakota’s two NCAA Division I universities, South Dakota State and the University of South Dakota, could be wary of the competitive and economic effects if the bill becomes law.
If the NCAA could influence conferences to enact similar policies to the one they are being asked to consider this example: Both SDSU and USD are a part of the Summit League. This season’s Summit League men’s and women’s basketball tournaments, both well-attended postseason events, will be held in Sioux Falls this season.
If this bill wins, it’s mostly lose-lose
The bill could end up on Kristi Noem’s desk and she may sign it, but there are few winners if any.
Transgender youth continue to be targets for conservative politicians who demonize them to show power or win votes at home or in the 2024 GOP presidential primaries.
Citizens lose. Money that could fund education, build bridges, fix roads and so on, end up paying legal fees instead.
A college athlete in South Dakota could lose, especially if the NCAA backs lofty words with action. Imagine being a South Dakota State Jackrabbit football player heading into FCS playoffs in a year were you’ve earned the right to stay home until the national championship game, and you’re told that transphobia is the reason you’ll play that FCS semifinal game against North Dakota State in the Fargodome instead of them coming to you.
Even Kristi Noem loses here, and maybe she already has.
Much of the Republican base still holds on to her initial zeal to sign HB 1217, her public press moment which included an appearance by Heisman Trophy winner-turned-Senate-candidate Herschel Walker, and to a last-minute veto which put her on the hot seat with conservative Fox News pundit Tucker Carlson.
Her executive order calling for a weaker version of statues sought in HB 1217 still drew GOP criticism. South Dakota Republican State Rep. Rhonda Milstead, the author of HB 1217, called the veto a “weak effort”, and publicly questioned Noem’s values on the “Washington Week with Tony Perkins” program.
“It’s common sense,” she fumed to one of the nation’s well-known anti-LGBTQ figures. “You have five organizations who said it's about the dollar and it’s about our image and we let them dictate our values.”
Milstead admitted that her bill is a version of the copy-paste legislation that the Alliance Defending Freedom has peddled to 38 states since last year. Groups like the ADF and the Perkins’ Family Research Council, who have built a dedicated, coordinated assault on trans rights, are perhaps among the few winners here.
Those groups stay front and center in their effort to leave trans youth and, by extension, all LGBTQ Americans behind.