South Dakota Governor Kristi Noem has drafted a bill prohibiting participation of transgender athletes on teams designated for females and males.

The draft of the law, entitled “Protecting Fairness in Women’s Sports,” looks similar to bills passed in a handful of states, including Alabama, Arkansas, Florida, Idaho, Mississippi, Montana, Tennessee, Texas and West Virginia. Idaho’s law was struck down by a federal judge and is in litigation.

The South Dakota bill states:

“Any interscholastic, intercollegiate, intramural, or club athletic team, sport, or athletic event that is sponsored or sanctioned by an accredited school, school district, an athletic association or organization, or an institution of higher education under the control of either the Board of Regents or the Board of Technical Education must be designated as one of the following, based on the biological sex at birth of the participating athletes:

(1) Females, women, or girls;

(2) Males, men, or boys; or

(3) Coeducational or mixed.

“Only female athletes, based on their biological sex, may participate in any team, sport, or athletic event designated as being for females, women, or girls.

“For purposes of this section, biological sex is either female or male as described by the sex listed on the athlete’s official birth certificate issued at or near the time of the athlete’s birth. The failure to comply with this section is a waiver of sovereign immunity.”

The law would allow athletes and schools to use the courts to obtain injunctions to stop any violations of the law.

Noem vetoed a similar type of law last March over potential problems she said she saw in the bill, issuing two executive orders instead. She defended her decision then in an op-ed for National Review, citing legal problems and the potential litigation the law would have provoked.

“It is for that reason that I asked the South Dakota state legislature to make revisions to HB 1217. As passed, this bill was a trial lawyer’s dream,” the governor wrote. “It would have immediately been enjoined had I signed it into law, meaning that no girls in South Dakota would have been protected.

“Unfortunately, the state legislature failed to accept my proposed revisions to the legislation. So I have signed two executive orders: one to protect fairness in K–12 athletics, and another to do so in college athletics.”

In her press release announcing the new bill, Noem stated that the new wording does not have the same flaws as the legislature’s previous bill. She also highlighted the fairness of the bill.

“This is about fairness,” Noem said. “Every young woman deserves an equal playing field where she can achieve success, but common sense tells us that males have an unfair physical advantage over females in athletic competition. It is for those reasons that only girls should be competing in girls’ sports.

“Women have fought long and hard for equal athletic opportunities, and South Dakota will defend them, but we have to do it in a smart way.”

The South Dakota legislature will begin its next legislative session on the second Tuesday of January. Noem’s bill will be considered at that time.


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