PIERRE, S.D. — Just when the South Dakota legislature adjourned as the last embers vanished on House Bill 1217, a transgender-barring sports bill, the state's governor, Kristi Noem, announced she'd be stoking the fire one more time, calling the gang back to Pierre for another go at "fairness in women's sports" legislation just in time to kick-off summer.
"Only girls should play girls' sports," said Noem, in a series of tweets just after 3 p.m. on Monday, March 30, announcing she'd "working with legislative leaders" to address both medical marijuana, federal spending, and "this important issue."
The governor published two executive orders on Monday meant to cover girls' and women's sports locally and collegiately, though the orders may lack legal standing, and in the collegiate case, appears to be merely aspirational.
Executive Order 2021-06, addressing college athletes, limits participation to "biological sex" based on a birth certificate's sex designation at birth. However, while the measure tasks the Board of Regents to carry out the policy, the language reflects the limits of the governor on the collegiate-level, saying only that only female athletes "should participate" (emphasis added) in a women's sporting event, not mandating as such.
A spokeswoman for the Board of Regents said staff is currently "reviewing this order and understanding its impact."
Conversely, the measure dealing with K-12 athletics, Executive Order 2021-05, mostly mirrors Noem's revision suggestions in HB 1217, in that the language theoretically allows an escape-hatch by defining "biological sex" as "birth certificate or affidavit upon initial enrollment."
State law requires students to submit birth certificates when attending school. However, when those birth certificates are "deemed unattainable," the law requires students to submit affidavits to vouch for their identity.
According to a Forum News Service analysis, in at least a handful of cases, judges at the county level have issued birth certificates for sex marker changes to minors and then sealed those initial birth certificates.
In the latter event, Noem's order directs the Department of Education to enforce the K-12 policy. A representative did not respond to a request for comment.
At least in the event of the K12 policy, it seems to paper over an Patrick Garry that has already limited participation to only one transgender female athlete in nearly a decade of existence.
In an email, Dan Swartos, the executive director of the South Dakota High School Activities Association said they'd yet to fully review the order.
University of South Dakota law professor Spencer Gosch said on Tuesday, March 30 that while he'd not reviewed the orders, he'd understood Noem's move as "another volley in the battle" of HB 1217.
"If this executive order mirrors the law she wanted passed, it pretty much an indication she's going to do a little bit of an end-run around the legislature," said Garry.
While Noem called her orders a "temporary" fix in a letter on Monday, any permanent measure will ultimately need legislative approval, which was absent on Monday's Veto Day for Noem's "style-and-form" revisions.
After the House of Representatives voted 67-to-2 to reject the governor's suggested edits, including gutting collegiate athletes and a private cause of action, which many suggested extended beyond the intended scope of a style-and-form action, House Speaker Spencer Gosch, R-Glenham, gaggled with reporters to reflect on the process.
"I've received no communication from the governor herself," said Gosch, speaking prior to the body's failed attempt to override the vetoed legislation on Monday. "I received a phone call from one of her staff members. As minimal as possible."