On Friday, Gov. Kristi Noem (R-S.D.) issued a “style and form” veto against H.B. 1217, the South Dakota bill “to promote continued fairness in women’s sports” amid transgender activism. The bill will return to the state House and the state Senate for revision and it will become law if it gains a majority vote in both chambers with Noem’s proposed revisions. While Noem says she still supports the legislation, advocates claim her revisions have “neutered” the bill.
“We are extremely disappointed to see Gov. Noem break her word on this critical legislation,” Terry Schilling president of the American Principles Project (APP) said in a statement. “Gov. Noem’s veto would scrap the vast majority of the bill text and would strip protections for female athletes in collegiate sports in the state. Additionally, it would eliminate all reasonable enforcement mechanisms, neutering the legislation so much as to render it meaningless.”
“All the while, Noem continues to claim dubiously that she still supports the bill, hoping South Dakotans will ignore the fact she was responsible for killing it,” Schilling added, bitterly.
In a statement on Friday, Noem argued that the bill’s language is over broad when it comes to the section requiring athletes to verify that they have not taken “any performance enhancing drugs.” She also claimed that the bill’s language requiring schools to maintain verification forms for students “creates an unworkable administrative burden.”
Finally, she argued that it would be “unrealistic” to mandate that college athletics be separated into male, female, or coeducational team sports according to biology.
“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,” Noem said. “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.”
This statement likely referred to the National Collegiate Athletic Association (NCAA), which issued a statement in 2020 condemning the Idaho law on which South Dakota modeled H.B. 1217.
Noem’s “style and form” veto also encouraged the legislature to drop the section that allowed aggrieved students to sue schools if the schools allowed biological boys to compete on girls’ teams.
Noem framed her changes as an attempt “to achieve the legislative intent of protecting girls’ sports, while simultaneously avoiding potential unintended consequences.”
Yet, like Schilling, many defenders of women’s sports condemned the governor’s changes.
“Today, Gov. Noem proposed changes to House Bill 1217 that would eliminate protections for female college athletes outright and gut the ability for all women and girls to have recourse against unfair policies in women’s sports,” Kristen Waggoner, general counsel at Alliance Defending Freedom (ADF), said in a statement. “Her misguided attempt to play politics and placate national corporate interests like Amazon is not what we would have expected from this governor.”
Waggoner’s response proved rather scathing. “It’s surprising that Gov. Noem, who once stood up to special interests and corporate woke-ism, has now bowed to them,” the ADF lawyer said. “Offering some protection for high-school-girl athletes only delays the injustice they will face once they get to college.”
While Noem alienated many of her allies, she did not exactly win converts from the other side. The ACLU slammed the governor for refusing to veto the bill altogether.
“House Bill 1217 was never about protecting fairness in women’s sports. It was about discrimination and the erasure of trans girls, pure and simple,” Jett Jonelis, advocacy manager for the ACLU of South Dakota, said in a statement. “Gov. Noem’s decision not to issue a full veto of this anti-transgender bill into law is disappointing. We are relieved, however, that the organizing by trans youth and pressure from business leaders, educators and parents has given us the chance to fight to block this bill from passing.”
Had Noem vetoed the bill, it would have required a 2/3-vote in both chambers to override her veto. After a “style and form” veto, however, the bill will only need a majority vote in both chambers to become law, once the legislature agrees to alter the bill as Noem has directed. The governor would still have to certify the amended bill.
Representative Rhonda Milstead, the bill’s sponsor in the state House, argued that Noem abused her power by issuing too broad a “style and form” veto. Noem’s alterations involved removing whole sections of the 4-section bill.
What happened? Earlier this month, Noem proudly announced that she would sign H.B. 1217, noting her firm defense of women’s sports on International Women’s Day.
According to Schilling, however, Noem had “frozen out advocates of HB 1217” for a week and instead took “advice from the bill’s most vocal critics, which include the South Dakota Chamber of Commerce and the South Dakota Board of Regents.”
Scientific journals have confirmed the obvious: males have biological advantages over females that cannot be erased simply by identifying as female. Due to their XY chromosomes, males experience more testosterone from the womb onward, even if they take experimental drugs to “block” puberty or to feminize their bodies.
Last year, female high school athletes filed a Title IX lawsuit challenging rules that allowed biological males who identify as female to compete in their sports leagues, denying them first- and second-place finishes. The lawsuit listed eight broad physiological athletic advantages males enjoy over girls and women after the onset of puberty, including larger lungs, larger hearts, an increased number of muscle fibers and muscle mass, higher myoglobin within muscle fibers (enabling faster transfer of oxygen to those muscles), larger and longer bones, increased mineral density in bones, and height.
Due to these long recognized advantages, sporting events have had different standards for boys and girls to accommodate the athletic striving of biological females. For example, women’s volleyball nets are 7 inches lower, the weight of high school shot put for boys is 36 percent heavier, the hurdle is 6 inches higher for boys, etc.
Duke Law School professor Doriane Lambelet Coleman warned that if women’s sports must admit biological men, “the very best women in the world would lose to literally thousands of boys and men, including thousands who would be considered second-tier.”
Policies that allow males who identify as transgender to compete against female athletes erase fairness in women’s sports, a long-fought feminist priority with which most Americans instinctively agree. Men’s and women’s sports are separate for a reason, and even when transgender policies are well-intentioned, they essentially destroy the barrier between the sexes, and prevent fair competition.
Noem should have strategized with the Republicans in South Dakota’s legislature before suddenly turning on them like this. This partial veto gave transgender advocates a victory and made the process of passing a bill with real teeth more difficult.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.