South Dakota Governor Asks for Changes to ‘Fairness in Women’s Sports Act’ – Launches ‘Defend Title IX Now’ Initiative

South Dakota Governor Kristi Noem sent the state’s Fairness in Women’s Sports Act, HB 1217, back to the legislature with an amendatory or partial veto, known in the state as a “style and form veto.” The veto recommended numerous changes to the legislation, which would preserve girls and women’s sports, from kindergarten through college, for biological females.

In a letter to the legislature dated March 19, she wrote, “Unfortunately, as I have studied this legislation and conferred with legal experts over the past several days, I have become concerned that this bill’s vague and overly broad language could have significant unintended consequences.”

The partial veto was a striking change from Noem’s response when the bill was passed. On March 8, she tweeted, “In South Dakota, we’re celebrating #InternationalWomensDay by defending women’s sports! I’m excited to sign this bill very soon.” That tweet was applauded by supporters and attacked by transgender-identified activists and their allies, who repeated the slogan “Trans Women are Women.”

In her veto letter, Governor Noem wrote, “I believe that boys should play boys’ sports, and girls should play girls’ sports.” She agreed with the legislative findings that with “respect to biological sex, one is either male or female” and that physiological male-female differences include “categorically different strength, speed, and endurance.”

Noem suggested the legislature revise sections of HB 1217 and delete two sections entirely. Her changes would allow girls to play sports based on their birth certificate, which can be easily changed in the state; remove collegiate athletics from the act, so that it would only cover K-12 sports; and strike a section of the bill allowing women to file lawsuits when denied opportunities by a male.

The governor asked the legislature to remove language from the act that required student athletes to provide a written statement verifying their age, biological sex and that “the student is not taking and has not taken, during the preceding twelve months, any performance enhancing drugs, including anabolic steroids.” She said the requirement “creates an unworkable administrative burden on schools.”

Noem also said that the legislation would conflict with guidelines from college athletic organizations like the NCAA, which allows transgender-identified athletes to compete. She wrote: “I am also concerned that the approach House Bill 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.”  

The Family Heritage Alliance (FHA), Focus on the Family-affiliated public policy group in South Dakota, had applauded the bill’s passage. The organization said the changes to H.B. 1217 were not “friendly, helpful or needed.” FHA wrote, “We cannot be in the position of claiming that “biology matters in high-school, but not when you get to college.” This claim will not stand up in court, nor is it based in reality. The changes suggested by the Governor would delete approximately half of the bill’s language.”

FHA also questioned whether the governor had the authority to make these changes, saying, “These changes are not corrections to errors in style or form, but instead, would set a dangerous precedent for lawmaking in South Dakota.”

The Monday after issuing the veto, Governor Noem held a press conference announcing a new initiative, “Defend Title IX Now.” The website invites people to sign a pledge which calls on the federal government to enforce Title IX to protect fairness for women’s sports. It also asks the NCAA and other athletic sanctioning bodies to “not take any adverse action against any state or school that acts to protect fairness for women.”

Noem cited physical differences between men and women, and she stated, “Put simply, it is fundamentally unfair for men to compete in women’s sports. And, it’s a violation of Title IX.” Noem said she and her legal team have been discussing how to take action on this issue and “do that in a way that we can actually win” the arguments and win in the courts. She said it would be highly unlikely for the state to win a lawsuit against the NCAA based on HB 1217.

Instead, she suggested a big enough coalition of athletes, states and individuals who join Defend Title IX Now could stand against the NCAA.

The Governor was joined in the press conference by collegiate athletes and on video by former NFL football players Herschel Walker and Jack Brewer. She also read a letter from LPGA Hall of Fame member Nancy Lopez, supporting the initiative.  

The South Dakota legislative session has ended, but the bill goes back to the legislature for Veto Day at the Capitol, March 29. Members will be asked to approve or disapprove her recommendations. FHA says if the revisions are not accepted, the Fairness in Women’s Sports Act would be “returned to the Legislature as a vetoed bill.”

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