Horowitz: Gov. Noem’s retreat on South Dakota transgender bill shows the need to make red states red again

Every statewide partisan officeholder in South Dakota is a Republican. The GOP controls the state House 62-8 and the Senate 32-3 — the largest majorities ever. Yet they can't seem to ban castration of minors or prevent men in female sports as part of the loony transgender agenda. What gives? They are plagued by the same business lobby preventing every other GOP supermajority state from protecting its historic cultural conservatism.

On Feb. 24, the South Dakota house passed HB 1217, which would prevent men from playing in female sports within state grade school and collegiate programs. Many red states have either considered or passed similar bills in recent months, and given the lopsided margins in the legislature, I didn't pay much attention to this bill because I thought its passage was a foregone conclusion. The bill did lose some Republicans in the House, but still passed with a 50-17 supermajority.

Signs of slippage showed in the Senate when the bill passed 20-15 on March 8, with a large number of the Republicans voting with the left. Nonetheless, Gov. Kristi Noem tweaked the left on International Women's day by promising to sign this bill into law.

Gov. Noem has been widely hailed as a hero by conservatives for standing up to COVID fascism and refusing to implement mask mandates and stay-at-home orders in South Dakota. As such, many were shocked when she did an about-face last Friday and issued a de facto veto threat until changes are made to the bill.

Unfortunately, I was not surprised, because prior to Noem's courageous stance on the lockdowns, she did disappoint us on refugee resettlement and on this transgender issue as well. Last January, the South Dakota House passed a bill prohibiting castration operations for minors who believe they are transgender, similar to a bill that recently passed in Alabama. The bill suddenly and bizarrely died in the Senate, and I remember seeing at the time that local media reported the governor had "concerns" about the bill. It's important to keep this in mind for what comes next.

Obviously, sensing the outrage from her new conservative fans, Noem took to Twitter to defend her actions.

The upshot of her long Twitter thread is that she is really 100% in support of maintaining the integrity of girls' sports but was merely concerned about some technical details and was offering some "recommendations as to STYLE and FORM."

It is true that in South Dakota a governor can issue a quasi-veto on style and form, which basically sends the bill back to the legislature for technical changes. Upon the legislature making those changes, the bill automatically becomes law, but if legislators decline to make those changes, the governor's recommendation becomes a veto. However, typically, style and form literally mean clerical mistakes, grammar, or spelling. Noem is proposing substantive changes, which in itself calls into question the constitutionality of this procedure.

Putting procedural rules aside, Noem gives away the farm in one line of her tweet thread, when she says "competing on the national stage means compliance with the national governing bodies that oversee collegiate athletics." Here we see that this is all about placating the NCAA gestapo and not about some hyper-technical unintended consequences that she claims to be worried about. She is requesting that the entire bill only apply to K-12 athletics, but not colleges. It's hard to see how this is not political and being done because of special interest pressure from out of the state.

This is why, contrary to her claim that this was fixing some style or form, Noem recommends gutting Section 2 of the bill, which would require athletes to verify their age and biological sex and attest to not taking anabolic steroids every year. This is the only way to actually make the ban on gender-bending enforceable. As we've seen with other conservative proposals opposed by GOP governors, Noem plays the "conservative" card by noting that this would create an "unworkable administrative burden on schools." However, this stuff is basic information that every school has on a student, especially those enrolled in athletic programs. It's hard to see where there would be an extra burden, other than catching those who aren't truly female.

Most importantly, Noem suggests gutting the two remedies for female athletes laid out in section 4: a cause of action against the institution for bringing men into the program and a prohibition on retaliating against female students who blow the whistle on biological men being placed on their teams.

Her proposal also adds on the words "as reflected on the birth certificate or affidavit provided upon initial enrollment …" to the requirement in Section 1 that female sports be made "available only to participants who are female, based on their biological sex." Why does biological sex need to be defined by birth certificate, especially as the left is trying to change birth certificates to reflect "identity" anyway?

So, what's really happening here? Well, it's not just the governor. As we can see, a number of senators voted against it, and conservatives actually had to use a "smokeout" (the equivalent of a discharge petition in Congress) to get the bill out of committee and onto the floor. The reality is that many establishment Republicans in red states are scared about ticking off Amazon and the Chamber of Commerce. They want to attract big business to their states with lower taxes, but then allow those business forces to use that against them and foist cultural Marxism upon the state. This is how they are painting red states blue.

Yesterday, Noem called on states to protect Title IX, but this rings hollow without a complete ban on an absurd idea backed by a movement as strong as the transgender lobby.

She is trying to step around the issue and have the corporations control the culture of red states. The question for Noem and every other red state Republican is this: If corporate America's financial decisions will now dictate cultural Marxism to red states, where can Americans escape to when all 50 states become blue?