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South Dakota Gov. Kristi Noem (R) has signed two executive orders seeking to ban transgender females from competing in girls’ and women’s sports after state legislators refused to adopt changes she had demanded to a bill seeking to achieve the same goal.
Noem’s first executive order states that “only females, based on their biological sex, as reflected on their birth certificate or affidavit provided upon initial enrollment” may compete in sports designated for girls at the elementary, middle, and high school levels, and directs the state’s Department of Education to develop a policy consistent with the order.
The second order states that “only females, based on their biological sex, as reflected on their birth certificate issued at the time of birth” will be allowed to compete in collegiate athletics for any team at a South Dakota institution of higher learning. The order directs the state’s Board of Regents to develop its own policy aligning with the order.
Ironically, it was Noem — who cast herself as the champion of female athletes — who scuttled the bill banning transgender athletes from competing according to their gender identity with a “style and form veto,” where the governor sends a bill back to the legislature asking them to adopt certain changes. If the legislature does not adopt the proposed changes, the bill dies.
While Noem initially appeared to be the biggest cheerleader of a ban on trans athletes, she expressed concern that the bill would put South Dakota colleges and universities at odds with NCAA rules allowing trans athletes to compete in their gender identity, which could prompt the NCAA to yank various athletic tournaments and championships from the state.
According to her veto message, Noem also worried that the bill, as written, would leave schools and students vulnerable to lawsuits over performance-enhancing drugs, contained overly broad provisions that would allow any athlete who fails to make a sport team to sue for damages, and created an onerous burden on parents and school administrators through a requirement that parents turn in paperwork “proving” their children’s assigned sex at birth every year.
But, by vetoing the bill, Noem angered a host of conservative groups who advocated for the legislation. The editors of the archconservative National Review even accused the governor of caving to fear of “expensive lawsuits and potential boycotts” threatened by opponents of the bill.
Noem has argued that the executive orders are a temporary fix to the issue, and said in her veto message that she wants to schedule a special legislative session in late May or early June to pass a trans athlete ban that meets her desired criteria.
However, Rep. Rhonda Milstead (R-Hartford), the sponsor of the original bill to bar transgender athletes from competing based on their gender identity, said Noem’s executive orders lack an enforcement mechanism and are just a political stunt to save face.
“The executive orders are just her trying to really cover her tracks,” Milstead told CNN.
The Family Policy Alliance, a conservative, anti-LGBTQ ministry, has circulated a letter demanding that Noem sign a ban on trans athletes like the one passed by lawmakers this session.
Forty-seven national and state policy leaders have signed onto the bill, including national groups such as Alliance Defending Freedom, the American Principles Project, the Family Research Council, and Heritage Action for America, all of which have records of hostility towards the LGBTQ community.
LGBTQ advocates slammed Noem for the executive orders, as well as her stated intention of calling a special session — thereby wasting taxpayer money — to specifically ban transgender children from competing in athletics.
“Rather than listening to the experts, families and business leaders in South Dakota who have pushed back against the legislature’s attempts to pass HB 1217 over the past few weeks, Gov. Kristi Noem clarified her anti-transgender agenda by signing two executive orders this afternoon,” Alphonso David, the president of the Human Rights Campaign, said in a statement.
“Noem’s executive orders show where her true priorities lie — playing politics with children’s lives in the middle of a pandemic,” David added. “These orders cannot withstand legal scrutiny. Transgender kids are kids, and they deserve the right to live full lives free from abuse, stigmatization, and danger.”
David echoed arguments put forth by other activists, noting that courts have found transgender students are protected by Title IX, the federal statute that prohibits sex-based discrimination. Last year, the U.S. Supreme Court adopted a similar rationale when it found that transgender people are protected under federal employment statutes banning discrimination based on an individual’s sex or sex assigned at birth.
Opponents have also noted that a similar ban on transgender athletes that passed in Idaho last year has been blocked from taking effect after a transgender collegiate athlete and a cisgender female athlete in high school sued, alleging the statute — as well as the way in which it would be enforced, by compelling cisgender female athletes who don’t adhere to stereotypically “feminine” behavior or don’t have traditionally “feminine” physical characteristics to submit to genetic testing — is unconstitutional.
Other LGBTQ groups warned that efforts to exclude transgender youth from school activities would have dire consequences for young people who already find themselves socially ostracized, bullied, or harassed due to their gender identity.
“As trans people, we still very much live in a world where our existence is an act of resistance and our visibility is an act of bravery,” Carrie Davis, the chief community officer at The Trevor Project, a suicide prevention and crisis intervention organization for LGBTQ youth, said in a statement. “In the face of such constant, vitriolic rhetoric and a record number of anti-trans bills, it is crucial to show up and show support for transgender and nonbinary youth year-round.”
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