Far-right groups are mad at South Dakota governor for not being anti-trans enough

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Gov. Kristi Noem (R-SD) is demanding changes to an anti-trans bill the Legislature passed — but right-wing groups say the changes aren't enough for them.

Republican South Dakota Gov. Kristi Noem held a press conference on Monday morning to "announce a new initiative to defend fairness in women's sports." Noem's announcement followed her decision to reject a bill limiting transgender girls' and women's sports' participation and demand changes to the legislation.

On March 8, the South Dakota Senate passed a bill that would prohibit transgender girls and women from playing on the sports team of their gender in K-12 and college sports.

The bill provided that each school year, the entity sponsoring or sanctioning athletic events would have to get a written statement for each participant verifying "biological sex, as ascertained at or before birth in accordance with the student's genetics and reproductive biology" that would have to be signed by a parent if they were under age 18.

If there were "reasonable cause" for a school or other entity to think that the information provided was false or misleading, the athlete could be taken off the team for the rest of the year. The bill also said the statement should verify that the "student is not taking and has not taken, during the preceding twelve months, any performance enhancing drugs, including anabolic steroids."

On Friday, Noem tweeted, "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."

Noem said that the verification requirement "creates an unworkable administrative burden on schools" and worried that the state wouldn't be able to compete nationally if it didn't comply with the requirements of the national governing bodies for sports.

She called for "Style and Form" changes to the legislation that would remedy the legal risks presented by the bill as passed:

The proposed revisions limit HB 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.

The governor also proposed that the determination of biological sex be based on a birth certificate or an affidavit provided by students. During the press conference, Noem clarified that athletes would have to use the birth certificate issued at time of birth or a legal document containing that information.

The Alliance Defending Freedom and the American Principles Project have strongly opposed changing the legislation and are urging the governor to sign the bill as it was passed, even though her proposed changes continue to stigmatize transgender youth and prevent them from playing sports.

The Alliance Defending Freedom, which has been designated as an anti-LGBTQ hate group by the Southern Poverty Law Center, criticized her "style and form" changes to the bill on Monday morning. The group's general counsel, Kristen Waggoner, said, "The governor intends to have a press conference launching an initiative Monday to control the damage to her credibility and political image."

South Dakota Republican state Rep. Rhonda Milstead, who sponsored the sports ban in the House, said she wouldn't rule out the possibility of a legal challenge against the governor, according to the Sioux Falls Argus Leader. Republican House Speaker Spencer Gosch said, "This would be an unprecedented request by a governor in South Dakota, and I am greatly concerned as to whether the executive branch has the authority to make substantive changes to a bill through style and form."

The American Principles Project has also been outspoken in its opposition to any changes. It has has heavily promoted the recent push by GOP state legislators to focus on the so-called threat to cisgender girls in athletics of transgender girls' participation. The group spent millions of dollars last year targeting voters in swing states such as Michigan with transphobic ads.

The group's executive director, Terry Schilling, said Noem's changes "would eliminate all reasonable enforcement mechanisms, neutering the legislation so much as to render it useless."

He added, "This betrayal will have political consequences."

The anti-LGBTQ groups are pressuring Noem and threatening her political future despite the fact that she recently signed into law a bill that the Human Rights Campaign said "could grant a license to discriminate against LGBTQ people across a wide range of goods and services in South Dakota."

During her press conference on Monday, Noem announced a coalition called "Defend Title IX Now," which states a list of its beliefs on its website:

1) Only girls should play girls' sports. Title IX was passed to protect fairness for women.

2) The federal government should enforce Title IX in a way that protects fairness for women's sports, rather than misusing it in a way that undermines fairness.

3) The NCAA and other athletic sanctioning bodies should not take any adverse action against any state or school that acts to protect fairness for women.

The National Collegiate Athletic Association and other groups have allowed transgender athletes to participate in sports on teams in keeping with their gender for many years.

Noem said, "The NCAA cannot possibly punish us all," noting that other governors were considering joining the coalition.

Jett Jonelis, American Civil Liberties Union of South Dakota's advocacy manager, said on Friday, "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."

Published with permission of The American Independent Foundation.