One last word on Governor Noem

Are both sides missing the point?

A Brief Background

You might have seen South Dakota in the news lately. Legislation proposed by the South Dakota legislature, HB 1217, would require that that K-12 and higher education female sports be “available only to participants who are female, based on their biological sex.” Governor Noem proposed revisions which included limitations of the legislation to K-12 schools. The colleges were out.

Then all hell broke loose. The ADF went on the attack, stating Noem “has downplayed the injustices that girls and women are already facing when they are forced to compete against males.” Noem appeared on Tucker and didn’t help her case, though she didn’t completely melt down. A series of opinion pieces ensued, including one from our friend Margot Cleveland at The Federalist.

Then Noem’s spokesman put out a tone deaf statement. Instead of arguing the merits, he went for a hot take:

“But if any number of conservative pundits are to be believed, that same governor who refused to cave is now caving to the NCAA and Amazon on the issue of fairness in women’s sports. What? Apparently, uninformed cancel culture is fine when the right is eating their own.”

As you can imagine, the backlash got worse.

A view from above: What exactly needs fixing in South Dakota?

Let’s take a step back. Forget the legislation for a moment, and consider where South Dakota stands with women’s college sports. According to my research (and please, comment if I’m wrong), South Dakota colleges do not currently allow male-to-female transgender athletes to participate in women’s sports.

Noem, therefore, isn’t asked to fix the current state of college women’s sports in her state. Instead, she is asked to sign legislation that would eliminate an issue that may or may not exist in South Dakota’s future.

What are the real issues?

Male-to-female transgender athletes participating in women’s sports is the manifestation of broader issues, namely the obliteration of a distinction between women and transgender women¹ and a furtherance of gender/sex ideologies on a general public who supports the status quo of women’s sports.

In other words, college athletics are just a means to a greater end: societal change. Those means are thwarted, and the ends are avoided, by legislation and by states - and the public - collectively taking a stand and keeping women’s sports for biological women.

How is this countered? With good laws.

There is little doubt that the fight to keep women’s sports for biological women (that is, a woman that was born a woman) will make it to the higher courts - perhaps the Supreme Court. It’s the big leagues. While we agree with the broader aims of HB 1217, the legislation proposed by the South Dakota legislature is so poorly written that it wouldn’t make it out of the minors.

For all the criticisms of Noem, I haven’t heard many people defend HB 1217 as a well-drafted law. And there are reasons for that.

The problems with the HB 1217 have been discussed by our friend and former federal prosecutor @Shipwreckedcrew, who explained some issues with the drafting of the legislation by the South Dakota legislature and suggested that the ACLU would likely get an injunction against the South Dakota statute in federal court.

I’ll continue on the theme he developed and explain other legal issues with the legislation.

• Section 1 states that female sports are available “only to participants who are female, based on their biological sex.” What of an equal protection claim with the legislation treating male-to-female athletes different than female-to-male athletes? Or how HB 1217 treats male and female sports different? Does this violate the “heightened scrutiny” that the Supreme Court places on “all gender based classifications”?

• Section 2 states that a school/sanctioning entity shall obtain a written statement from a student or his parents that the student is not taking and has not taken “any performance enhancing drugs.” Nobody can say with certainty what that term means because the legislation provides zero guidance. Are South Dakota K-12 schools to follow World Anti-Doping Agency guidelines? Which prescription or over-the-counter drugs are on South Dakota’s prohibited list? Are certain levels of stimulants, like caffeine, prohibited? If “performance enhancing drugs” is undefined, how would it survive under South Dakota law, which requires that statutes not be vague?

• Section 2 also states that a student may be prohibited from participating in sports where the school/sanctioning entity “has reasonable cause to believe that any information provided in accordance with this section is false or misleading.” But how does a school obtain such “reasonable cause”? Is it a suspicion, something more than a suspicion, or something they believe is more likely than not? Nobody knows because the legislature didn’t define the term or explain in detail exactly how a school can get to the point (evidence, testimony, etc.) of finding reasonable cause. That gives us another vagueness problem. Another question: how does punishment for “reasonable cause to believe” that information is “misleading” square with a student’s privilege to participate in athletics? I’m not sure courts would allow that.

Noem’s Other Proposals

HB 1217 also allowed for a cause of action where a student could sue the school, school district, athletic association or organization, or their employees for violations of the statute. Noem proposed that this section be struck in its entirety.

Alliance Defending Freedom (ADF) General Counsel Kristen Waggoner stated on Twitter that this proposal from Noem “gutted the primary [legal] remedy for high school girls, denying them a right to sue when their rights are violated.”

Kristen Waggoner @KWaggonerADF

@RaffertyCarnell @kaylibmusic @govkristinoem She gutted the primary remedy for high school girls, denying them a right to sue when their rights are violated. The revisions undercut provisions for high schoolers significantly and leave college athletes completely out in the cold.

But is that really the case?

For example, let’s say Governor Noem’s proposals are accepted and the law passes. Let’s further assume that after the law is signed, a high school female runner is scheduled to run against a male-to-female runner from another school in the 100 meter dash. Under Noem’s version of HB 1217, the school allowing the male-to-female athlete to run is in violation of the law.

What would stop a female student athlete from filing suit and requesting an injection/temporary restraining order where a violation of HB 1217 affected her?

Retaliation

Additionally, there are concerns that Noem’s version of HB 1217 allows for “retaliation” against students for complaints of HB 1217 violations. This would have to do with Noem’s proposed removal of a section of the law that includes this language:

If a student is subjected to retaliation or other adverse action, as a result of reporting a violation of this Act to an employee or representative of a school, school district, institution of higher education, athletic association or organization, or to a state or federal governmental entity having oversight authority, that student has a private cause of action for injunctive relief, damages, and any other relief available under law, against the school, school district, institution of higher education, or athletic association or organization.

We can all agree that students should be protected from any type of retaliation for their protected speech. Students do not give up their constitutional rights once they walk into school.

This leads us to a question: If the “retaliation” section of HB 1217 is removed, do students still have a remedy if they are subject to retaliation for reporting violations?

The answer is yes.

Students still have a remedy under 42 USC 1983 for the violation of their First Amendment rights. “The First Amendment right of free speech includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right.”

As the Fourth Circuit Court of Appeals stated in Constantine v. George Mason University:

[F]or purposes of a First Amendment retaliation claim under § 1983, a plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter “a person of ordinary firmness” from the exercise of First Amendment rights.

Fault and the Path Forward

Finally, this is a cultural fight that will be resolved in the courts. There’s a long list of conservative losses in such fights: abortion, gay marriage, etc. Why pick this fight with such a poorly written law?

What we need is serious legislation that will protect women’s sports and withstand legal challenges. HB 1217 doesn’t do that. Governor Noem’s revisions don’t do it either.

All of this is a long way of saying there are really two parties at fault here. First, look to the South Dakota legislature for bringing such a flawed law to the Governor. And second, Governor Noem should have offered revisions that would have strengthened the law and removed any fatal vagueness or constitutional problems.

But perhaps there’s more to the issue.

As I write this, something hit me. We condemn the NCAA for bullying states into compliance with the NCAA’s broader political beliefs and criticize Noem for bowing to NCAA pressure.

Yet I continue to watch college football and March Madness. I’m a faithful consumer of these NCAA products. Maybe I’m at fault too.

1. On this point, the NCAA’s Transgender Handbook states: “According to medical experts on this issue, the assumption that a transgender woman competing on a women’s team would have a competitive advantage outside the range of performance and competitive advantage or disadvantage that already exists among female athletes is not supported by evidence.”