Gov. Kristi Noem explains the changes she's asking for in House Bill 1217 to 'promote continued fairness in women's sports'

South Dakota Gov. Kristi Noem penned this long thread on Friday to explain changes she’s asking for on House Bill 1217 to “promote fairness in women’s sports.”

TL;DR: There are unintended consequences in the bill as written and those need to be addressed before it becomes law.

THREAD (22 tweets) ==>

I believe that boys should play boys’ sports, and girls should play girls’ sports. I'm returning House Bill 1217 with the following recommendations as to STYLE and FORM. (1/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

As the legislative findings in the original version of the bill set out, “[w]ith respect to biological sex, one is either male or female[.]" (2/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

The legislative findings also state “[p]hysiological differences between males and females include ‘those most important for success in sport: categorically different strength, speed, and endurance.’” (3/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

That is why House Bill 1217 properly provides that females should have opportunities to play youth sports on teams comprised of females and against teams of females. (4/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

Unfortunately, as I have studied this legislation and conferred with legal experts over the past several days, I have become concerned that this bill’s vague and overly broad language could have significant unintended consequences. (5/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

For example, Section 2 of House Bill 1217 requires a student athlete to verify, each year, that the student “is not taking and has not taken, during the preceding twelve months, any performance enhancing drugs, including anabolic steroids.” (6/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

Rather, if a male student athlete failed to make the football team, and later learned that another student on the team was taking steroids without disclosing it, the student who didn’t make the team would be entitled to sue both the school and the steroid-user for damages. (8/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

In addition, Section 2 creates an unworkable administrative burden on schools, who under its terms must collect verification forms from every student athlete, every year, as to age, biological sex, and use of performance-enhancing drugs. (9/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

Furthermore, schools must monitor these disclosures throughout the year so that if “reasonable cause” is found of a false or misleading form, the school can take action to avoid civil liability. (10/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

I am also concerned that the approach House Bill 1217 takes is unrealistic in the context of collegiate athletics. (11/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

In South Dakota, we are proud of our universities’ athletic programs, and in particular the great strides we have taken to gain national exposure and increase opportunities for our next generation over the past two decades. (12/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

South Dakota has shown that our student athletes can compete with anyone in the country, but competing on the national stage means compliance with the national governing bodies that oversee collegiate athletics. (13/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

While I certainly do not always agree with the actions these sanctioning bodies take, I understand that collegiate athletics requires such a system – a fifty-state patchwork is not workable. (14/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

To achieve the legislative intent of protecting girls’ sports, while simultaneously avoiding potential unintended consequences, I am recommending four Style and Form changes to the Enrolled version of HB 1217, which you can find here: (15/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

The proposed revisions limit HB 1217 to elementary and secondary school athletics, which are primarily conducted among South Dakota schools and at the high school level are governed by the South Dakota High School Activities Association, a creature of South Dakota law. (16/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

The proposed revisions will also remedy the vague language regarding civil liability and the use of performance-enhancing drugs. (17/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

Overall, these style and form clarifications protect women sports while also showing empathy for youths struggling with what they understand to be their gender identity. (18/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

But showing empathy does not mean a biologically-female-at birth woman should face an unbalanced playing field that effectively undermines the advances made by women and for women since the implementation of Title IX in 1972. (19/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

The Supreme Court of the United States has recognized that the Equal Protection Clause of the Fourteenth Amendment allows for the law to treat women and men differently. (20/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

In this instance that equal protection afforded women absolutely should apply on our state’s elementary and high school playing fields. (21/)

— Governor Kristi Noem (@govkristinoem) March 19, 2021

I support this legislation and hope that House Bill 1217, with the changes I am proposing, becomes law.

— Governor Kristi Noem (@govkristinoem) March 19, 2021

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