Thomas Gallatin / April 1, 2021

Noem Explains Her Veto of Gender Protection Bill

South Dakota’s governor issued two executive orders instead, while insisting the legislation wouldn’t hold up in court.

South Dakota Governor Kristi Noem made unexpected waves last week when she suddenly withdrew her support for legislation that would have banned biological males from competing in girls’ school sports. This after she had previously pledged to support the bill. Asserting that the legislation, dubbed the Fairness in Women’s Sports Act, was “a trial lawyer’s dream,” Noem sent the bill back to the state legislature to remove portions that specifically dealt with women’s collegiate sports.

That was last week. This week, after the state legislature rejected Noem’s demanded changes, she followed through on her veto while also insisting that she’s committed to defending women’s sports. “Only girls should play girls’ sports,” Noem insisted. “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.”

Noem also promised to work “with legislative leaders to schedule a special legislative session in late May or early June” to “address this important issue, as well [as] others (medical marijuana and the latest federal spending package.)” In an op-ed published in National Review, Noem further committed “to build a coalition of athletes, governors, attorneys genera, and other leaders to take on the NCAA … and then, we can flip the economic pressure around on them.”

Regarding Noem’s two executive orders, the first states that “only females, based on their biological sex … shall participate in any girls’ or women’s athletic event sanctioned by a public school,” while also ordering South Dakota’s Education Department to “establish a policy consistent” with her order. In many ways, this mirrors the now-vetoed legislation.

Her second order is similar to the first in that it applies the gender-specific standards to collegiate schools — with one major caveat: It states that the Board of Regents “should take any and all steps necessary within the law of the state to legally implement policies consistent” with her order. She just tanked a piece of legislation that would have specifically set the legal policies within the state regarding collegiate athletics. So the question is, to what policies is she referring?

It’s clear that Noem is on the defensive regarding her surprising decision on HB 1217, a decision she seems to have come to after consulting with business leaders. Noem seemingly alludes to this fact in her op-ed when she speaks of building a coalition to “flip the economic pressure around” onto the NCAA.

Noem’s insistence that the legislation would certainly lose in court rings hollow, while ironically gifting “transgender” activists an easy narrative with which to attack and smear any future gender-protection legislation.

Finally, it’s entirely disingenuous for Noem, via her spokesman Ian Fury, to play the victim after facing criticism from conservatives for her apparent about-face. “Governor Noem is very used to fighting off criticism from the Left,” Fury stated. “But if any number of conservative pundits are to be believed, that same governor who refused to cave is now caving to the NCAA and Amazon on the issue of fairness in women’s sports. What? Apparently, uninformed cancel culture is fine when the right is eating their own.”

Memo to Fury: Criticism is not cancel culture. Noem’s decision to suddenly pull support for legislation she originally touted will naturally bring strong questions. Furthermore, Noem’s offer of only vague political assertions and platitudes rather than any clearly identified specific issues in the bill only serves to underscore suspicions that she got spooked with economic concerns.

Noem still has the opportunity to prove us wrong, and hopefully she will. However, as things currently stand, her explanation for rejecting HB 1217 plays like a classic political cop-out.

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