Late on Friday, March 19, just hours after Noem announced her so-called “Form and Style” veto, which returned the “fairness in women’s sports” bill decried as discriminatory to transgender student-athletes to the legislature, Speaker Spencer Gosch, R-Glenham, issued a statement calling her move an “unprecedented interpretation” of a governor’s veto power under the state constitution.
“The legal definition of Style and Form clearly states that it has to be ‘distinguished from substance,'” wrote Gosch, “and the proposed changes clearly alter the overall substance of House Bill 1217.”
Noem proposed on Friday in a letter to legislators removing college athletes from the bill’s requirement that participants compete according to their “biological sex.” The Republican governor also gutted an enforcement mechanism requiring every school to submit waivers documenting a student’s “reproductive biology.” Finally, the governor widened the definition of “biological sex” from the original bill to encompass a birth certificate or an affidavit — either of which could theoretically be utilized by a transgender athlete seeking to play according to his or her gender identity.
The bill’s prime sponsor in the House, Rep. Rhonda Milstead, R-Hartford, rejected these amendments, noting “every school already requires a birth certificate upon enrollment, so what is the real burden here?”
In an email to Forum News Service, the bill’s prime sponsor in the Senate, Sen. Maggie Sutton, R-Sioux Falls, said Noem’s proposed changes “will substantially change the content of the bill.”
“Removing the collegiate [language] is simply saying that biology matters in high school, but not in college,” Sutton wrote.
Sutton invoked her status as an aunt to a transgender child in suggesting on the Senate floor last week that her opposition to the bill was not due to animosity toward transgender students.
On Friday, she noted she was “very disappointed” in Noem’s move.
Currently, transgender athletes are allowed to participate in South Dakota athletics according to their gender identity, if seeking and receiving approval from the South Dakota High School Activities Association. The SDHSAA executive director Dan Swartos returned an email on Friday night saying he’d not yet had time to read the governor’s proposed changes, saying he was attending the state boys’ basketball tournament in Rapid City.
Noem’s move comes a week after the Republican governor of Mississippi, Tate Reeves, signed a nearly identical measure. Last year, a federal judge in Idaho blocked a similar “fairness in sports” bill from taking effect in that state.
On Friday, Terry Schilling of the conservative American Principles Project, blasted Noem in an email, saying she was “standing with Joe Biden and the radical left against protecting women’s sports.”
South Dakota’s legislature returns to Pierre for one day at the end of the month to consider measures vetoed by Noem. The bill will only need a simple majority in both houses to become law.
Rep. Linda Duba, a Sioux Falls Democrat, rejected the dramatic claims — such as women’s sports ceasing to exist if transgender girls and women are allowed to compete — used to pass the bill earlier this month in Pierre and called on opposition to concurring with Noem’s amendments.
“This is just the farthest thing from the truth,” said Duba. “It’s so disheartening when you look at the issue that way. Just let them play. They make it sound like a pandemic. It’s not.”
In the last decade, according to the SDHAA, one transgender girl has competed in state-sanctioned high school athletics in South Dakota.