Supporters of South Dakota's Fairness in Women's Sports bill are accusing Republican Gov. Kristi Noem of "betrayal" and "pandering to special interests" after she vetoed the legislation, sending it back to the state legislature with recommended changes.
The legislation, H.B. 1217, would prohibit any student at a state school from joining a sports team that does not match his or her biological sex. So, for example, a boy who identifies as female and takes hormones to affirm his gender identity would be prohibited from playing on girls' sports teams or competing against girls.
Republican majorities in the state legislature sent the bill to Noem's desk for her signature, and although at first she said she was "excited" to sign it, on Friday Noem issued a "style and form" veto, sending it back to lawmakers.
In a statement, the Alliance Defending Freedom, a non-profit legal group that supports social conservative causes, blasted the governor's decision.
"Gov. Noem had an opportunity to protect women and girls by signing the Fairness in Women's Sports bill, but instead she pandered to the demands of special interests," Alliance Defending Freedom General Counsel Kristen Waggoner said. "In what was an abuse of her 'style and form' veto power, she gutted protections for collegiate athletes and took away legal recourse for girls forced to compete against biological boys."
The South Dakota state constitution empowers the governor to send bills "with errors in style or form" back to the legislature with specific recommendations for change.
In a letter to lawmakers, Noem stated her belief that "boys should play boys' sports, and girls should play girls' sports," but said she was "concerned that this bill's vague and overly broad language could have significant unintended consequences."
Among her concerns is that the bill is "unrealistic in the context of collegiate athletics." Both the NCAA and the South Dakota Chamber of Commerce reportedly lobbied Noem against the bill. The NCAA objected to policies it views as discriminatory against transgender athletes, and the Chamber of Commerce was concerned that the state could lose millions of dollars of business revenue if South Dakota colleges and universities lose NCAA accreditation and tournament games are no longer held in the state.
"Competing on the national stage means compliance with the national governing bodies that oversee collegiate athletics," Noem wrote to lawmakers.
"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," she said.
Republican sponsors of the bill said Noem's proposed changes would significantly weaken the legislation and be morally inconsistent.
"The recommended changes will substantially change the content of the bill. The legality was removed, which leaves the bill with a very weak authority. Removing the collegiate is simply saying that biology matters in high school, but not in college," Republican state Sen. Maggie Sutton, the bill's lead sponsor in the state senate said.
Republican state Rep. Rhonda Milstead, H.B. 1217's sponsor in the House, accused the governor of violating the state constitution with her veto.
The state constitution says: "Bills with errors in style or form may be returned to the Legislature by the Governor with specific recommendations for change." Milstead argues the proposed changes go beyond "style" or "form" to be tantamount to legislation from the executive branch.
"It is overreaching by trying to legislate law as the executive branch," Milstead said.
Noem's explanation was also received poorly by the Alliance Defending Freedom.
"We are shocked that a governor who claims to be a firebrand conservative with a rising national profile would cave to 'woke' corporate ideology," Waggoner said.
She continued: "The governor tried to explain her betrayal with claims that her hands were tied by NCAA policy. But there is no NCAA policy that requires schools to allow males to compete on women's teams as Gov. Noem suggests. The governor also vetoed the part of the bill that gives girls any legal recourse against unfair policies that arise. What's left is mere lip service for women and girls forced to compete against biological males."