Some conservatives who applauded South Dakota Gov. Kristi Noem’s (R) promise to sign a bill making women’s and girls’ sports at any level available only to biological females, are rejecting Noem’s explanations of why she is now scrapping much of the legislation and forming a coalition of states to fight the NCAA.
“Kristi Noem had an opportunity to show real leadership on behalf of girl athletes, both in her state and nationwide,” said Terry Schilling, president of American Principles Project, a D.C.-based think tank devoted to America’s founding principles. “All she had to do was put her signature on a bill which convincingly passed the state legislature and which polling has shown is an incredibly popular issue in South Dakota.”
Instead, Noem returned the measure to the South Dakota legislature with “recommendations as to STYLE and FORM.”
In her defense of why she decided the bill her legislature passed and she had vowed to sign was unacceptable, Noem told Fox News’ Tucker Carlson on Monday she and her “legal scholars” agreed “this bill would only allow the NCAA to bully South Dakota.”
Noem explained at a press conference Monday, “South Dakota’s chances of winning a lawsuit against the NCAA are very low.”
Should the NCAA take punitive action against the state, “we could sue them,” the governor said, adding, “but these respected legal scholars inform me that we would likely lose.”
As a result, Noem recommended restricting the bill to elementary and secondary school athletics, and eliminating the section on college sports.
Noem also said she and her legal experts “have become concerned that this bill’s vague and overly broad language could have significant unintended consequences,” in a Twitter thread Friday:
The governor addressed Section 2 of the bill that requires a student athlete to verify annually the student “is not taking and has not taken, during the preceding twelve months, any performance enhancing drugs, including anabolic steroids.”
“Presumably, this requirement was included to address a student taking these drugs as a part of a gender transition, but House Bill 1217 is not limited in this way,” Noem said, adding:
Rather, if a male student athlete failed to make the football team, and later learned that another student on the team was taking steroids without disclosing it, the student who didn’t make the team would be entitled to sue both the school and the steroid-user for damages.
Schilling, however, asserted Noem is simply engaging in “political theater”:
Unfortunately, Gov. Noem has instead shown herself to be a run-of-the-mill politician — trying to appease wealthy and powerful special interests in her state while also making it falsely appear that she is doing the right thing. Her press conference this morning was a textbook example of political theater. Noem claimed to be taking action to protect girls’ sports, but in reality, her announced initiative was a meaningless gesture calculated to deflect criticism of her surrender to NCAA threats.
Margot Cleveland, a senior contributor at the Federalist, observed Monday Noem’s changes included multiple amendments to the bill, including the elimination of two entire sections of what was originally only a four-section measure.
Noem’s rationale for the changes are “beyond misleading,” she wrote.
For example, Cleveland questioned Noem’s reasoning about eliminating the section that would have required students to confirm their age and biological sex each year, along with confirmation they had not taken performance-enhancing drugs, including anabolic steroids, within the previous year.
The governor said such a provision would demand “an unworkable administrative burden on schools.”
“This rationale seems suspect given that schools usually already collect parental permission forms and medical certification to allow students to participate in athletics every year,” she wrote. “Further, nothing in Section 2 requires schools to ‘monitor these disclosures throughout the year,’ although Noem suggested it did.”
Most prominent of Noem’s requested “style” and “form” changes, however, is the striking of women in college-level sports from the legislation’s protections, i.e., that women’s sports would be limited to biological women, and if a male attempted to join a women’s team, a female athlete who was injured by that action could file a lawsuit.
Cleveland also noted:
Noem’s requested revisions would thus profess in Section 1 that South Dakota elementary and high school girls’ sports are limited to female athletes, while providing girls harmed by violations of the law no remedy. In fact, by the protections of Section 4, South Dakota schools would be free to retaliate against female athletes who complain about violations of Section 1.
She said Noem’s reasoning that the bill is in opposition to NCAA regulations and would block South Dakota college-level athletes from competing in NCAA tournaments is flawed:
To the contrary, NCAA regulations provide that if a male competes on a female team, that makes the team a “mixed team,” which is ineligible to compete for a women’s NCAA championship. The NCAA does, however, allow a male “student-athlete being treated with testosterone suppression medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism,” to compete on a women’s team after “completing one calendar year of testosterone suppression treatment.”
However, nothing in this NCAA policy requires a college or university to treat a male student-athlete as female. Given the number of religiously affiliated colleges and universities participating in NCAA sports, any such mandate would face tough opposition and likely be unworkable.
Senior editor at the Federalist Mollie Hemingway, a Fox News contributor, tweeted a recent story Tuesday from Capital Journal that observed Attorney Matt McCaulley, a “top advisor” to Noem, is a “controversial behind-the-scenes power broker in Pierre”:
According to the Journal:
McCaulley’s talent for navigating complex legal and political issues has made him a go-to lobbyist for clients ranging from Noem to Sanford Health, and from South Dakota agricultural interests to national cell service provider T-Mobile.
In addition to maintaining one of the deepest client lists of any lobbyist in South Dakota, McCaulley is also the managing partner of Redstone Law Firm in Sioux Falls, which has been hired to provide outside legal counsel to the Noem administration.
Additionally, the Journal noted, “Redstone’s connections to the Governor’s Office have been further strengthened of late as Tony Venhuizen, recently a partner in the firm, has taken over as Noem’s chief of staff.”
Venhuizen is also a member of the board of directors of the Greater Sioux Falls Chamber of Commerce.
Alliance Defending Freedom senior counsel Kristen Waggoner told the Daily Caller News Foundation on Monday that Noem “made a critical mistake in thinking that she could pander to big business and big tech and to woke ideology and somehow placate conservatives with hollow words.”
Waggoner asserted Noem is either “grossly misinformed” or engaging in “political theater.”
“If Noem thinks this gambit will save her political career, she is sadly mistaken,” Schilling continued. “Conservative voters will not forget that when given the choice between standing up for the principles of fairness and equality for girl athletes or caving to the left, she chose the latter. This failure in leadership will define her moving forward.”