Earlier this month, Gov. Kristi Noem (R-South Dakota) tweeted that she was “excited” to sign House Bill 1217, legislation that would ban biological men from participating in girls’ sports in her state. But two weeks later, she changed her mind, announcing that she would instead be issuing a “style and form” veto of the bill. And on Monday, after these “style and form” changes failed to pass the South Dakota House of Representatives, Noem officially vetoed the bill.
Noem says that most of her objections concern the bill’s language. She claims that the bill creates an insurmountable administrative burden by asking student athletes to fill out a form specifying their sex as determined by birth. According to Noem, this would be “impossible” for families to do. Instead, she wants an athlete's sex determination to be based on the sex listed on his or her birth certificate (birth certificates can easily be amended in the state of South Dakota). Noem also argues that the bill’s prohibition on performance-enhancing drugs might stop kids from taking their multivitamins, and that its section providing an option for girls to sue schools that violate the law is unacceptable because—as she said in a press conference—it would be a “trial lawyer’s dream.”
But much of her argument against the bill concerns the potential for corporate backlash—and she issued her “style and form” veto after the NCAA, the state Chamber of Commerce, and other corporate interests, including Amazon, aggressively lobbied against the legislation. Primary among Noem’s stated objections is an appeal to “legal scholars” who argue that the bill would lead the state to lose a court case against the NCAA at some point in the future. As Noem's press conference made clear, she isn’t arguing that the courts would overturn the law itself. Instead, she’s arguing that if she were to apply the law to colleges, the NCAA could “punish” her—by, say, not holding tournaments in the state, or even banning South Dakota students from competing. Then, if she were to sue to stop them from doing so, she would lose that case. Or so the “legal scholars” assure her.
In other words, Noem is arguing that she can’t justify the risk of upsetting a powerful corporate interest. Potentially losing the NCAA's business played at least a small role in her decision—one of Noem’s consultants has a vested interest in NCAA tournaments in the state. But the other business interests in her state are likely of greater concern. Noem has staked her gubernatorial career on her ability to attract big business to South Dakota. Noem's chief of staff is on the board of the Sioux Falls Chamber of Commerce—and both the Sioux Falls Chamber and the state Chamber have opposed the bill. Other critics of the bill have publicly expressed worries that if the bill were passed, Amazon might halt construction of a new fulfillment center in Sioux Falls.
The GOP’s relationship with big business often comes at a high cost. Last year, after several Chambers of Commerce in South Dakota expressed displeasure with a bill that would have banned sex changes for children under the age of 16, Noem privately lobbied to kill the bill. Then, as now, Noem had previously said she was willing to sign such a bill into law.
Noem has stated that her veto on Monday wasn't a veto. But when the South Dakota Speaker of the House sent her a message asking for a constitutional clarification of this non-veto veto, Noem’s team refused to receive it. The House proceeded with a veto override vote, but it failed to get the two-thirds majority needed to pass.
Noem has announced she will instead be issuing two executive orders to “protect” women’s sports. But unfortunately for female athletes, these orders are toothless. They contain no enforcement mechanisms and amount to little more than vaguely-worded recommendations to her department of education and her board of regents.
Noem has also stated she is “building a coalition” and launching a website where concerned citizens can sign a petition set up by her political consultants. Once an unspecified number of governors agree to enforce fairness for women's sports in their states, Noem implies, she will too. But the governors of Mississippi and Idaho have already signed bills that protect women's sports. While Noem prevaricated, a similar bill passed in the Arkansas legislature, which the governor then signed. Instead of joining this existing coalition, and urging others to do the same, Noem has seemingly decided to wait and see how it goes. Unfortunately, that's bad news for South Dakota's female athletes.
Jon Schweppe is the director of policy and government affairs at American Principles Project.
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