After failed negotiations between South Dakota Republican Gov. Kristi Noem and the state's House lawmakers, the governor issued two executive orders Monday designed to limit participation on women's and girls' school sports teams to people assigned female at birth.
Earlier this month, state lawmakers passed a bill restricting transgender athletes from playing on sports teams that align with their gender identity. After signaling support — even excitement — for the bill, Noem declined to sign it over concerns the law would not survive legal challenges. Instead, she asked lawmakers to revise the legislation's language. Major conservative backlash ensued and on Monday, South Dakota lawmakers failed to come to an agreement.
"Only girls should play girls' sports," Noem tweeted Monday evening. "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."
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. (1/3)
— Governor Kristi Noem (@govkristinoem) March 29, 2021
Neither of the governor's orders mention transgender athletes specifically but Mark Miller, the governor's general counsel, says because legislators did not approve Noem's changes to the bill, she issued the orders as a temporary fix.
The Department of Education and the Board of Regents will need to ensure that K-12 school districts and colleges and universities restrict participation in girls' and women's sports to athletes who can prove their assigned sex at birth.
"I think the executive orders speak for themselves," Miller says. "What they do is set out that DOE and BOR should take steps to ensure that girls play girls' sports."
Miller says the orders are designed to clarify where South Dakota stands on the issue. Lawmakers in several other states have already passed bills this year attempting to change the rights of transgender individuals.
Gov. Noem says she will work with legislative leaders to schedule a special legislative session in late May or early June of this year to resolve the issue through legislation, along with other pending matters in the state.
Dan Swartos, the director of the athletic association for the state, says that since 2013 South Dakota has had a policy that any transgender athlete wanting to play school sports must acquire documentation from their physician that they identify as transgender. Then, an independent hearing officer determines if the athlete has any competitive advantage. Since the policy was instituted, only one transgender girl athlete has been allowed to play girls' sports in the state.
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