Noem, who previously said she was “excited” to sign the bill, expressed concern that the measure in its current form contains “vague and overly broad language” that could have “significant unintended consequences.”
The legislation, House Bill 1217, which aims to “promote continued fairness in women’s sports,” passed in the state House in February. The state Senate subsequently passed the bill in early March. The language of the bill specifies that “a team or sport designated as being female is available only to participants who are female, based on their biological sex.”
In a letter to state legislators, she reiterated her commitment to advance HB 1217 but added that the wording of the bill required several changes in its “style” and “form” before she could sign it.
Among her suggestions for changes include limiting the operation of the bill to elementary and secondary school athletics, modifying language about civil liability, and removing a requirement that requires schools to obtain annual verification forms on a student’s age, biological sex, and whether the student had taken any performance-enhancing drugs.
“The proposed revisions limit House Bill 1217 to elementary and secondary school athletics, which are primarily conducted among South Dakota schools and at the high school level are governed by the South Dakota High School Activities Association, a creature of South Dakota law. The proposed revisions will also remedy the vague language regarding civil liability and the use of performance-enhancing drugs,” Noem wrote in her letter.
“Overall, these style and form clarifications protect women sports while also showing empathy for youths struggling with what they understand to be their gender identity. But showing empathy does not mean a biologically-female-at birth woman should face an unbalanced playing field that effectively undermines the advances made by women and for women since the implementation of Title IX in 1972.”
Noem’s decision to send the bill back for changes has drawn criticism from proponents of the bill, who assert that the governor is backtracking or limiting the bill because of pressure from the South Dakota Chamber of Commerce.
“Moments like this are important. They tell you about the character of the person and whether or not they are presidential. If you can’t stand up to the chamber of commerce, how the hell will you stand up to China?” Terry Shillings, president of the American Principles Project Foundation, said in a Twitter response to Noem’s letter.
South Dakota Chamber of Commerce President David Owen told The Federalist that his association has been pressuring Noem to veto the bill, arguing that the bill could jeopardize the state’s corporate interests.
“Employers view the workforce as a place of inclusion,” Owen told the publication. “They’ve made it clear to us they won’t support groups that help pass laws that blindly discriminate in certain areas.”
Noem’s communication office didn’t respond to a request for comment by press time.
In a separate statement on March 20, Noem said she had been exploring “litigation to defend Title IX and fairness in girls’ sports at ALL levels,” since November last year.
“To pursue that strategy, I’m asking legislators to pass a new bill on Veto Day, or I will call a special session. Let’s protect girls’ sports & fix the concerns with 1217,” she wrote.
In her letter, Noem said she was limiting the bill to K–12 athletics because she believes the approach that HB 1217 “takes is unrealistic in the context of collegiate athletics.”
“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. 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,” she argued.
She also explained that she was worried that the bill would allow students to be sued for using performance-enhancing drugs and also creates “an unworkable administrative burden on schools,” for collecting the annual verification forms.
Rep. Rhonda Milstead, a Republican member of the South Dakota House of Representatives and a prime sponsor of the bill, previously told an audience at the Conservative Political Action Conference that it’s important to protect women’s sports because allowing biological males to compete would send a message to girls and females that “they aren’t important.” It would also send a message to biological males who are transgender that it is “OK to be superior and almost to bully.”
“I don’t think that’s the message we want to send to any child in this country,” she said.