PIERRE, S.D. — A South Dakota governor on the political ropes held a press briefing in Sioux Falls on Monday, March 22 to push an impromptu group to "save women's sports" and simultaneously argue for passage of a bill she vetoed days earlier.
"I'm still excited to sign the bill, nothing's changed," said Gov. Kristi Noem, a Republican, defending a measure banning transgender female athletes from participating on girls' and women's sports.
But she also noted signing the bill would be a "participation trophy" that would land the state in immediate litigation they'd almost certainly lose, given the bill in question has been found to discriminate against transgender athletes in another federal court.
It was another head-turning moment for Noem amid a political battle over a "fairness in women's" sports bill that has engulfed the end of the state's legislative cycle.
Earlier this month, Noem tweeted she was "excited" to sign the measure after it passed the state senate. But last Friday, she issued a "style and form" veto, sending a bill with heavy amendments back to the legislature, which is slated to meet for one final day next week.
Noem endured days of withering criticism from national conservative organizations and state politicians who sponsored the bill. A late-evening letter from House Speaker Spencer Gosch, R-Glenham, said he was "disappointed" by Noem's suggested edits, which range from removing collegiate sphere from the bill's jurisdiction to allowing athletes to define their "biological sex" via an affidavit.
The governor emerged on Monday with former NFL players on a video screen, read a letter from a champion LPGA golfer, and invited rodeo stars and female student-athletes up to vouch for a new coalition (and website) she hopes could someday fight off the NCAA, who has threatened to boycott the state should she sign the bill.
"Once we have enough states on board, a coalition big where the NCAA cannot possibly punish us all then we can guarantee fairness at the collegiate level," said Noem.
But she didn't mince words on what would happen if the current bill became law.
"We could pass a law, then we could get punished, then we could face expensive litigation at taxpayer expense, and then we could lose," said the governor, citing "respected, legal scholars" that she declined to name.
Last summer, Justice Neil Gorsuch wrote the opinion for a 6-3 U.S. Supreme Court that found "sex" discrimination prohibitions in federal employment law extended to transgender individuals. A federal judge in Idaho has also blocked a "fairness in sports" law.
On Monday, Noem sought to portray the bill much as the measure's sponsors have, exclusively as a move to shore-up competitive fairness for females while tiptoeing around the claims the bill discriminates against transgender athletes, particularly children who wish to participate in sanctioned-sports according to their sex identity.
South Dakota has had few, if any, transgender athletes who've received approval from the state's sanctioning agency, the South Dakota High School Activities Association. During testimony on HB 1217, SDSAA executive director Dan Swartos defended the current policy, which requires a student to participate in activities "consistent with their gender identity," following the student's parents submitting notice to the school, a written statement, including a health care professional's testimony. Only then is a hearing officer appointed to approve the application.
Bill supporters often reference the infamous story of track athletes from Connecticut, which is now embroiled in a lawsuit.
On Monday, former NFL player Herschel Walker, who appeared last summer at the Republican National Convention, suggested without any evidence that males seeking sporting glory flippantly could identify as a female to win events.
"At my age today, I can now classify myself as a woman and go in the Olympics and I could probably win a gold medal in certain events," said Walker.
It's not clear Walker's statement is accurate. The International Olympics Committee is expected to issue new rules around transgender participation, but current rules require female transgender athletes who have experienced male puberty to be tested for lower testosterone levels before competing.
Nevertheless, Jett Jonelis, with the ACLU of South Dakota, said such extreme hypotheticals are often used to distract from the negative ramifications the proposed law would reap on transgender youth.
"How she (Noem) talks about this issue, and a lot of supporters of this bill, really points to the fact that this an attempt to erase transgender girls out of public life," said Jonelis. Even with the amendments, the ACLU views the measure as "discriminatory" and "unlawful."
The next step will come next Monday, when the legislature reconvenes for Veto Day, to consider Noem's style-and-form veto. Asked by reporters if she would be worried about a lawsuit if her amended bill passes, the governor said, "I'm not concerned about the impact on South Dakota."