South Dakota bill banning biological males from women’s sports fails

The governor has come under heavy fire from conservatives in the past few weeks for failing to sign the bill.

Gov. Kristi Noem speaking with attendees at the 2020 Student Action Summit hosted by Turning Point USA. (Gage Skidmore/Flickr)

(Daily Caller News Foundation) — South Dakota Republican Gov. Kristi Noem failed to certify a bill banning biological males from women’s sports Monday after the legislature voted to reject her changes.

The state’s House rejected Noem’s style and form veto of H.B. 1217 on Monday, the state’s Veto Day, by a vote of 67 to 2. The vote sent the bill back to Noem, who returned the bill to the House the same day with a failure to certify, the Rapid City Journal reported.

South Dakota House Speaker Spencer Gosch ruled Thursday that Noem’s action counted as a veto. The House vote to override Noem’s action, counting it as a veto, failed 45-24.

Noem’s spokesman Ian Fury disputed Tuesday that Noem could have signed the bill, telling the Daily Caller News Foundation that “she had no constitutional authority to do so.”

“The legislature didn’t approve her ‘specific recommendations’ as provided by the Constitution,” Fury said, referring to South Dakota’s constitution.

The governor, who has come under heavy fire from conservatives in the past few weeks for failing to sign the bill, had previously and repeatedly emphasized that she had not yet vetoed H.B. 1217. On Monday, she again insisted to lawmakers that her decision to return the bill to the House with a failure to certify did not equate to a veto.

“Returning the bill is not a veto,” she wrote in a Monday letter. “Rather, the constitution provides that the legislature’s failure to accept my recommendations requires that the bill be treated as if it was vetoed.”

The governor also sent a second letter to lawmakers Monday in which she announced two executive orders: one to “protect fairness in K-12 athletics” and another to “do so in college athletics.”

“Since Governor Noem could not constitutionally sign the bill, she took the only action that she legally could take,” Fury told the DCNF on Tuesday, “issuing executive orders to protect women’s sports at both the K-12 and collegiate levels until the legislature can pass legislation superseding those EO’s.”

In the letter, Noem reiterated her concerns about HB 1217 and noted that though her critics point out that several other states have “taken action on this topic,” the legislation passed in other states is different than South Dakota’s bill.

“I raised four concerns in my proposed style-and form revisions,” Noem wrote, citing “the performance-enhancing drug ban section, which is not limited to protecting girls sports,” and “the cause of action section which would have turned any failure to make a sports team into a litigation hazard.”

Noem also cited “the onerous paperwork requirement, which required every parent of a school-aged child to turn in paperwork every year that identified whether the parent’s child was a boy or a girl and to address whether their child has taken performance enhancing drugs in the last year” as well as “the provision on applying the law at the collegiate level.”

The American Principles Project President Terry Schilling told the DCNF Monday afternoon that Noem’s “supposedly small tweaks” weren’t actually small, but “fundamentally subverted the entire bill.”

“And when the state legislature rightly rejected Noem’s changes, 67-2, she was left with a final choice: back up her claim to be a defender of girl athletes by signing the bill or complete her capitulation to the woke NCAA and activist business interests by letting it die,” Schilling said. “Unfortunately, she chose the latter, making her the only Republican governor to date to refuse to sign legislation protecting girls’ sports when given the opportunity. So much for leading a coalition.”

Jon Schweppe, APP’s director of policy and government affairs, insisted to the DCNF that the governor has vetoed HB 1217, though she is attempting to make a distinction between a “veto” and a “vetoed bill.”

“She had a chance to sign it into law, twice, and she passed both times,” Schweppe said.

“Voters are smarter than that,” Schweppe said. “The bill now heads back to the House and Senate needing a two thirds majority in both chambers. We are anticipating a vote within the next hour or two.”

The DCNF previously reported that the governor was wavering in her support for the legislation due to pressure from various interest groups in South Dakota. Though Noem said as recently as March 8 that she was “excited” to sign the legislation, her spokesman later told the DCNF that the governor was still weighing the bill.