In an email blast to reporters Wednesday, South Dakota Republican Gov. Kristi Noem's office said conservative critics of her decision to issue a "style and form" veto of a controversial transgender sports bill were participating in "uninformed cancel culture."
"Governor Noem is very used to fighting off criticism from the left. After all, in the past year, she was the only governor in the entire nation to never order a single business or church in her state to close. The left bullied her incessantly, but she didn't cave," Noem communications director Ian Fury wrote to reporters.
"But if any number of conservative pundits are to be believed, that same governor who refused to cave is now caving to the NCAA and Amazon on the issue of fairness in women's sports. What?" he continued.
"Apparently, uninformed cancel culture is fine when the right is eating their own."
Fury pushed back against accusations that the governor caved to the NCAA and woke big business interests by vetoing H.B. 1217, a bill that would prohibit any student at a state school from joining a sports team that does not match his or her biological sex. The bill, which has been championed by social conservative groups, was designed to prevent gender dysphoric males who identify as females from competing in sports against women.
"If conservative media would take 5 seconds to read past the knee-jerk headlines and actually understand Governor Noem's position, they'd come to a very different realization," Fury said.
Late last Friday afternoon, after previously saying she was "excited" to sign the bill, Noem blindsided conservatives by changing her position in an announcement that said she would send it back to the legislature with proposed changes.
Stating that H.B. 1217 was "unrealistic in the context of collegiate athletics" and raising concerns that it would make South Dakota vulnerable to litigation, the governor invoked a power from the veto clause of the South Dakota Constitution that permits her to send bills "with errors in style or form" back to the legislature with specific recommendations for change.
Conservative critics say Noem's proposed changes would gut the bill: Preventing it from applying to South Dakota colleges and universities — a concession to the NCAA's official position supporting transgender inclusivity; removing requirements for athletes to verify their age and biological sex and attest to not taking anabolic steroids; eliminating protections for K-12 girls who sound the alarm on boys being placed on their teams and removing their ability to sue school districts that ignore the law; and creating a loophole for transgender athletes by defining a student's sex as what is "reflected on the birth certificate or affidavit provided [to the school] upon initial enrollment" — a provision that fails to account for the push by transgender activists to have a person's official birth certificate be legally changed to reflect their self-proclaimed gender identity.
Backlash against this "style and form" veto was swift and fierce. The Alliance Defending Freedom, a nonprofit legal group that fights for socially conservative causes, accused Noem of "betrayal" and caving to "'woke' corporate ideology." Terry Schilling, president of the American Principles Project, a conservative think tank that supported the bill, said Noem broke her word and accused her of "standing with Joe Biden and the radical left against protecting women's sports."
On Monday, Noem was interviewed by Fox News host Tucker Carlson about her decision, and Carlson confronted her directly, asking if she was "caving to the NCAA" and other business groups that had opposed the bill — a charge that the governor vigorously denied.
The email from Noem's office attempted to clarify her position. "Governor Noem has long stood for fairness in women's sports. The reason why should be obvious: guys and girls are fundamentally different. Only girls should play girls' sports," Fury wrote.
He pointed to Noem's record on gender controversies in sports, citing her opposition to an attempt by the Trump administration's Department of Agriculture to eliminate "boys" and "girls" events in the 4-H youth rodeo.
H.B. 1217 is "a trial lawyer's dream, offering all sorts of avenues for litigation that have nothing whatsoever to do with the issue at hand," Fury said. "Furthermore, the bill picked a fight with the NCAA — a fight that renowned conservative legal experts advise Governor Noem that she will lose, especially considering South Dakota's unfriendly federal bench."
The email did not name the "renowned conservative legal experts" Noem consulted. In response to an inquiry from TheBlaze, Fury said he would not share the names of the legal experts without their permission to do so. He did note that Noem's general counsel, Mark Miller, is a former board member of Americans United for Life who has "brought to this conversation important lessons learned from the pro-life movement, namely that the Casey decision set the movement back for decades."
Planned Parenthood vs. Casey was a landmark U.S. Supreme Court ruling in 1992 that upheld the constitutional right to have an abortion that was established in Roe vs. Wade (1973). Fury compared the movement to protect women's sports to the pro-life movement, telling TheBlaze, "Given Justice Gorsuch's unfortunate Bostock decision just last year, we need to take the same careful approach with this issue."
In Bostock v. Clayton County, Supreme Court Justice Neil Gorsuch authored the majority opinion that said Title VII provisions of the Civil Rights Act of 1964 protect gay and transgender people from employment discrimination. The argument advanced by Noem's office is that anti-transgender discrimination litigation from the NCAA could lead to a Supreme Court decision similar to Bostock that applies Title IX sex discrimination protections to gender dysphoric men who identify as women, a court precedent that would strike down laws protecting women's sports nationwide.
"Governor Noem faced tremendous pressure from corporate bigwigs and the radical left alike to veto the bill. But she didn't do that," Fury claimed. "Instead, she returned it to the legislature with suggested changes because she wants these fundamental protections to pass and to survive a legal challenge."
"That's very disingenuous," Jon Schweppe, director of policy and government affairs at the American Principles Project, said, responding to Fury's email. In an interview with TheBlaze, Schweppe said the characterization of Noem's critics as "uninformed" was "a little insulting."
"The idea that we're being uninformed or that we are uninformed somehow, that's incredibly rich," Schweppe said, noting that APP legal scholars have analyzed the bill and worked "to make sure that it stood up well to legal challenges."
In a statement provided to TheBlaze, Alliance Defending Freedom general counsel Kristen Waggoner blasted the accusation that Noem's critics are trying to cancel her.
"ADF defends victims of cancel culture everyday. Exposing invented reasons and criticizing an elected official for caving to woke corporations is not cancel culture. It's accountability," Waggoner said. "Cynically blaming cancel culture is what politicians do when there are no arguments left to justify a bad decision like forcing girls to compete against males. Gov. Noem gutted the bill for women AND girls. Stand up to the bully and join the other states who have passed the bill."
The claim from Noem's office that her "style and form" revision is not a veto of H.B. 1217 doesn't persuade her critics.
"I just have to say, that's really not true," Schweppe told TheBlaze.
The South Dakota Constitution states: "Bills returned shall be treated in the same manner as vetoed bills except that specific recommendations for change as to style or form may be approved by a majority vote of all the members of each house. If the Governor certifies that the bill conforms with the Governor's specific recommendations, the bill shall become law. If the Governor fails to certify the bill, it shall be returned to the Legislature as a vetoed bill."
"The legislature would have to accept all of her changes wholesale, they they can't just pick and choose," Schweppe explained.
Several GOP state lawmakers who had supported the bill's passage were infuriated by Noem's action. They have been outspoken about how the "style and form" power is designed to fix things like grammatical errors and have accused Noem of abusing her power by fundamentally altering the language of the bill.
"I think just common sense is going to tell all of us that it's not style and form," state Rep. Rhonda Milstead, the bill's House sponsor, told KELO-TV. "Style and form, if we go back to our English classes on what style and form is, has nothing to do with substance, which is what she did. She rewrote the bill, and that's not her job."
"In my response to her style and form is that she gutted the bill," state Senate sponsor Sen. Maggie Sutton said. "She took out a lot of the legality which leaves it almost meaningless. And to take out the collegiate part of the bill is a big concern of mine."
Republican House Speaker Spencer Gosch, who supports the bill, added he has "very grave concerns on constitutionality here, and my oath of office requires me to uphold what the Constitution says."
Schweppe says the lawmakers' opposition to what Noem has done indicates they won't accept her changes, making her refusal to sign H.B. 1217 as written a de facto veto.
Noem's office indicated to TheBlaze that the governor will not certify the original bill if the legislature rejects her proposed revisions.
"If the legislature declines to accept her Style and Form, Governor Noem is proposing that they suspend the rules and pass her recommended changes as a new bill, or she can call them back into special session to accomplish the same goal with a simple majority," Fury said.
The South Dakota governor is not without conservative defenders. After Noem was interviewed on his program and defended herself, BlazeTV host Glenn Beck told her "I think you're doing the exact right thing." Conservative lawyer Brian Darling observed that signing H.B. 1217 into law might mean "sacrificing South Dakota's ability to host events and participate fully in NCAA competition" and praised Noem for "acting like a responsible governor and not a 2024 presidential candidate."
To win over skeptical conservatives, Noem held a news conference on Monday announcing a new coalition called "Defend Title IX Now," a campaign supported by prominent athletes and other governors to push back against the NCAA's opposition to laws keeping female-identifying transgender athletes off women's sports teams.
"The purpose of this coalition is to gather states together to fend off the NCAA's pressure. We need enough states that the NCAA can't possibly bully us all — and then we can win," Fury said. "Not just fight for the sake of fighting. We don't want any participation trophies. We're in it to win it. And we win by taking a smart approach."
But the conservatives who support protections for women's sports say Noem could join a team that's already been formed, one consisting of several states that have already passed bills similar to H.B. 1217.
"We have two states that have passed bills, Idaho In Mississippi," Schweppe told TheBlaze. "We have two more that are preparing to, they passed the legislature and are on the governor's desks in Tennessee and Arkansas. So South Dakota would have the opportunity to join a coalition by passing their bill. And then you'd have five states with bills protecting women's sports.
"That sounds like a coalition to me," he said.
Editor's Note: This article was updated on 3/24 at 6:32 p.m. to edit a quote from American Principles Project director of policy and government affairs Jon Schweppe. Mr. Schweppe contacted TheBlaze to clarify that he misspoke when he said APP legal scholars helped "write" H.B. 1217.