PIERRE S.D. — South Dakota's House State Affairs committee passed on an 11-2 vote in the Monday, Feb. 22, evening hours a bill designating women-only sports as not inclusive of transgender girls, with one proponent arguing that the measure, which has been blocked by federal courts in other states, would be a worthy cause to defend in court.
"If there's a lawsuit in the state of South Dakota because of a law that we pass," said Rep. Jon Hansen, a Dell Rapids Republican, "It is worth every penny."
House Bill 1217, supporters argued, would ensure fair competition in sex-segregated sports by creating a list of requirements for sanctioned sports that would effectively ban transgender participation. Advocates say there are potentially unfair advantages in physique for girls who line up or run against competitors who were born male.
"Boys, males are now being allowed to participate in female-specific sports, even in the state of South Dakota," said Rep. Rhonda Milstead, a Hartford Republican, the prime sponsor of the legislation.
Critics of the measure, including the governing body for high school sports, responded that the bill is misrepresenting the vast majority of trans athletes and would prevent transgender students from participating in sports.
Dan Swartos, executive director of the South Dakota High School Activities Association, defended the current policy, noting that in nearly a decade only one transgender girl has ever participated in sanctioned events.
"That student played for four years, and I can tell you a lot of girls beat that girl in cross country," said Swartos. "Transgender kids are going to be there. Schools have to be able to work with them."
After nearly two hours of testimony and debate, the committee voted on partisan lines to pass the bill onto the House floor. But not before a, at times, testy back-and-forth between lawmakers who'd met over 12 hours earlier for the marathon committee session and then broke at mid-day.
House Speaker Spencer Gosch, a Glenham Republican, recounted calling double-headers involving an early girls game and late boys game, as a radio broadcaster, observing, "I'm here to tell you there's a substantial difference between those two basketball games."
Immediately after Gosch's appeal to vote for the bill, House Minority Leader Jamie Smith, a Sioux Falls Democrat, invoked his own background as a former wrestling coach who'd supported a girl wrestler before the state sanctioned girls wrestling.
"I don't think I could disagree with anything more than what was just said," said Smith. "It is so important that people find their place in a school. If you're a transgender student, you are at risk."
Earlier this legislative cycle, the House passed a bill prohibiting transgender persons from updating their birth certificates. And many who testified invoked the quickly evolving legal ground.
Last year, a federal judge in Idaho blocked a "fairness in sports" bill, noting the legislation violated the U.S. Constitution. The U.S. Supreme Court, in a 6-3 ruling, also found transgender identity protected by the broad proscriptions in the 1964 Civil Rights Act, with respect to employment law.
On Monday, bill opponents, including representatives for the South Dakota Chamber of Commerce, warned that passing legislation perceived as anti-LGBTQ could jeopardize high-profile college athletics events in the state.
At Monday's debate, however, proponents suggested the bill needed to prevent the scourge of what they referred to as "male athletes" participating in girls' sports.
Beth Stelzer, an amateur powerlifter, said a recent competition was marred by the inclusion of a transgender female who later sued her league.
"This type of advantage is huge," said Stelzer.
Other bill supporters, including Rapid City attorney Sara Frankenstein, reminisced about playing high school basketball and worried that transgender girls would've injured her, given their size and strength.
The bill itself would require the "sponsoring or sanctioning entity" to obtain, in writing, a student athlete's age, "biological sex" and a clean drug test. The final requirement raised pragmatic questions for Swartos.
He asked what happens when he receives a phone call from a parent saying, "We played a girl from Lemmon last night who scored 40 points. She looks pretty muscular. I think she's a boy," said Swartos. "If we're going to throw out wild hypotheticals here we should throw them out on both sides."
Ultimately, the bill's supporters decided the threat to endangering fair competition — and perhaps even the demise of women's athletics — they believe transgender girls pose moved them to send the bill onward, even in the face of legal and economic threats promised by opponents.
"It just burns my you-know-what," said Rep. Rebecca Reimer, a Chamberlain Republican. She said she took exception with opponents contending there were few, if any, instances of transgender athletes participating in South Dakota sports. "Does that make it OK?"