Gov. Kristi Noem vetos transgender sports bill and instead issues two executive orders to protect athletes



South Dakota Republican Gov. Kristie Noem issued two executive orders meant to take the place of a transgender sports bill that the state's House of Representatives passed while rejecting her "style and form" revisions.

Noem made the announcement on Monday after being criticized by many on the right for trying to revise the Women's Fairness in Sports bill in order to avoid costly litigation in the future from transgender activists. Her critics said the revisions would effectively gut the protections intended for biologically female athletes.

"Only girls should play girls' sports. Given the legislature's failure to accept my proposed revisions to HB 1217, I am immediately signing two executive orders to address this issue: one to protect fairness in K-12 athletics, and another to do so in college athletics," said Noem.

Only girls should play girls’ sports. Given the legislature’s failure to accept my proposed revisions to HB 1217, I… https://t.co/4xncVi1pL1
— Governor Kristi Noem (@Governor Kristi Noem)1617054752.0

"Additionally, I will be working with legislative leaders to schedule a special legislative session in late May or early June," she added. "The special session will address this important issue, as well as others."

Noem's revisions drew the ire of many conservatives who accused her of caving to the left. Her office responded by excoriating the "uniformed cancel culture" of her detractors in a scathing statement by Noem spokesperson Ian Fury.

"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," he said.

During debate prior to the vote on Noem's revisions, South Dakota lawmakers accused her of abusing her executive power.

Noem previously defended her policies in an interview with talk radio host and TheBlaze founder Glenn Beck.

"I'm a small state. South Dakota is small," she said. "We have to fight hard to even get any tournaments or games in the state of South Dakota. And I recognize the NCAA can come in and crush me, and can make an example out of me, and point to South Dakota and say, 'See, no other state better challenge us whatsoever.' So that's why I'm trying to be smart about this and build a coalition of athletes, of states, of governors, of attorneys generals, and show the NCAA that we're going to fight to make sure that only girls can play in girls' sports."

Here's Noem discussing the bill in a media briefing:

Kristi Noem: Why I didn't sign women's sports bill immediatelywww.youtube.com

Breaking: South Dakota House rejects Gov. Noem's 'style and form' revisions to transgender sports bill



The South Dakota House of Representatives on Monday overwhelmingly rejected Gov. Kristi Noem's "style and form" revisions to the Women's Fairness in Sports bill.

State house lawmakers voted 67-2 against certifying Noem's recommended changes to 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, H.B. 1217, was designed to prevent gender-dysphoric males who identify as females from competing in sports against women.

Two weeks ago, Gov. Noem sent H.B. 1217 back to the legislature with a "style and form" veto, a power she has under the state constitution to suggest changes to a bill related to the style or form of the legislative text. Noem said that the protections for women's sports teams were "unrealistic in the context of collegiate athletics" and asked lawmakers to remove provisions that would apply to collegiate athletics, in addition to other changes conservative supporters of the legislation claimed would gut the bill. The governor used her style and form veto power to dramatically revise the legislation, striking some sections entirely in a move several state lawmakers characterized as an unconstitutional abuse of her executive authority.

The state House considered Noem's proposed changes on "Veto Day," the last day of the legislative session in South Dakota during which lawmakers will consider bills vetoed by the governor.

In debate before the vote to certify Noem's changes, the bill's House sponsor, Rep. Rhonda Milstead (R-Hartford), said the changes were "not appropriate for the executive branch," KELO-TV reports. Other lawmakers said Noem's revisions were not actually related to "style" or "form," which is generally understood to mean corrections in grammatical errors or the like, not substantial changes to the proposed law.

The governor needed a simple majority of the state House and then the state Senate to certify her proposed revisions. In the end, only two lawmakers in the House voted in favor of Noem's version of H.B. 1217.

The bill now heads back to the governor's desk for either her signature or veto.

A spokesman for Noem's office previously told TheBlaze that if the legislature rejected her revisions, Noem would call for a special session of the legislature to draft a new bill.

"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," Noem communications director Ian Fury said.

The implication of that statement is that Noem will veto H.B. 1217.

Last week, Arkansas Governor Asa Hutchinson (R) signed a version of the "Fairness in Women's Sports Act" that requires athletes to compete on teams that match their sex. Tennessee Gov. Bill Lee (R) signed a similar bill that requires student athletes to play on the teams that match the sex declared on their birth certificates.

Conservatives blasted Gov. Kristi Noem for vetoing a transgender sports bill. Her office accused them of 'uninformed cancel culture'



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, helped state lawmakers write it, 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.

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.

In South Dakota, we're celebrating #InternationalWomensDay by defending women's sports! I'm excited to sign this bi… https://t.co/GBB4OUj90t
— Governor Kristi Noem (@Governor Kristi Noem)1615234273.0

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.

I believe that boys should play boys’ sports, and girls should play girls’ sports. I'm returning House Bill 1217 wi… https://t.co/CSBILHIVAM
— Governor Kristi Noem (@Governor Kristi Noem)1616185726.0

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.

Today, we’re announcing a coalition of athletes, leaders, and anyone who cares about defending fairness in women’s… https://t.co/XAgky3FEIC
— Governor Kristi Noem (@Governor Kristi Noem)1616440419.0

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?

Report: South Dakota Gov. Kristi Noem undecided on bill to protect women's sports



South Dakota Gov. Kristi Noem (R) reportedly has not yet made up her mind on whether to sign a controversial bill that would ban transgender athletes from participating on sports teams according to how they identify.

The Daily Caller reported Friday that Noem is "wavering" on whether to sign the bill after facing pressure from the NCAA, the South Dakota Chamber of Commerce, and threats from Amazon to abandon a plant in Sioux Falls if she should sign it.

The legislation, H.B. 1217, would prohibit any student at a state school from joining a sports team that does not match their biological sex. On International Women's Day on March 8, Noem publicly stated she was "excited" to sign the bill, which proponents say would protect women's sports by ensuring men taking hormones to transition to female would not be allowed to compete against women.

However, in an interview with the Argus Leader published Thursday, Noem said she was still reviewing the bill and that she would make a final decision on whether to sign it "probably in the next two to three days."

"It's a complicated bill even in that there are parts of it that aren't written so well," she said, without specifying the provisions of the legislation to which she referred.

TheBlaze reached out to Gov. Noem's office for clarification but did not receive comment.

The Daily Caller received confirmation from Noem's communications director Ian Fury that the governor has not yet made up her mind on the bill.

"Governor Noem is still weighing 106 pieces of legislation that have action due next Friday, and that is one of them," Fury said.

The legislation faces opposition from business leaders and collegiate sports officials, who say it could result in millions of dollars of economic losses for South Dakota.

Dave Zimbeck of the Sioux Falls Sports Authority told the Argus Leader earlier this month that the NCAA could cancel its March Madness tournaments in Sioux Falls because of the bill. The proposed law would likely be viewed as discriminatory by the NCAA, violating its policies concerning diversity.

"Ultimately, that's deemed under the NCAA policies as discriminatory. And that would put us on the outside looking in, and ultimately we would lose out on a bid we were seeking, and we would also lose out on a tournament that's already been awarded to us," Zimbeck said. "This bill as it's written casts a big shadow on our ability to host a tournament."

In a statement to the Argus Leader, the NCAA reaffirmed its commitment to supporting transgender athletes and said it is closely monitoring policies that could impact their participation in collegiate sports.

"The NCAA believes in fair and respectful student-athlete participation at all levels of sport. The Association's transgender student-athlete participation policy and other diversity policies are designed to facilitate and support inclusion. The NCAA believes diversity and inclusion improve the learning environment and it encourages its member colleges and universities to support the well-being of all student-athletes," NCAA spokesperson Gail Dent said.

In previous years, NCAA sports tournaments hosted in South Dakota have generated millions of dollars in revenues for local businesses.

Zimbeck also noted that schools that follow the law but violate NCAA policy could lose their accreditation with the NCAA and their ability to compete against other schools outside South Dakota.

"It's predictable – it's very alarming, but it's predictable – that the colleges under the Board of Regents' control would be put in a position where they have to disconnect or walk away from the NCAA and lose their accreditation and ultimately have no place to compete," Zimbeck said. "Without a conference affiliation, without an NCAA membership, the schools have no place to play, and now we could see where we essentially have to eliminate athletics completely from state-run colleges or universities, which is extremely alarming."

The bill's backers in the state legislature acknowledged to the Daily Caller that opposition was "inevitable" but said that sometimes doing the right thing means standing up to "bully tactics."

"I think the reality of it is that if you stand up for the right thing, and this is the right thing, that good will come of it," Republican bill sponsor state Rep. Rhonda Milstead said, "that bully tactics aren't gonna work if you hold your ground. And that's what those are, bully tactics."

The South Dakota state constitution empowers the governor to send bills "with errors in style or form" back to the legislature with specific recommendations for change. Milstead speculated that Noem may attempt to use this power, but dismissed the strategy as inappropriate.

"She's the executive branch, the legislature is the one that passes laws," Milstead said. "So if she wants to change the language, it has nothing to do with style and form. It has everything to do with content, context."

"That's not appropriate," she added. "It's really going outside of the powers of the branch. That's not what the executive branch is for."