Governor Noem Returns HB 1217 to Legislature, Suggests Style and Form Changes

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Governor Noem Returns HB 1217 to Legislature, Suggests Style and Form Changes

PIERRE, S.D. – Today, Governor Noem returned HB 1217 to the South Dakota Legislature with Style and Form suggestions.  Specifically, the Governor suggests four Style and Form changes to address the potential unintended consequences of HB 1217 as originally enrolled.

Governor Noem’s Full Letter:

Dear Legislators,

I respectfully return to you House Bill 1217 with the following recommendations as to STYLE and FORM.

I believe that boys should play boys’ sports, and girls should play girls’ sports.  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[,]” and “[p]hysiological differences between males and females include ‘those most important for success in sport: categorically different strength, speed, and endurance.’”

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. 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.

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.”

Presumably, this requirement was included to address a student taking these drugs as a part of a gender transition, but House Bill 1217 is not limited in this way. 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-using student for damages.

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; and furthermore 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.

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

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. 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.

To achieve the legislative intent of protecting girls’ sports, while simultaneously avoiding potential unintended consequences, I recommend the following Style and Form changes to the Enrolled version of House Bill 1217:

  1. Revise Section 1 to read:

13-67-1 Athletic teams and sports-–Designation by sex–Participation.

Any athletic team or sport that is sponsored or sanctioned by an accredited elementary or secondary school public school, a school district, or an association meeting the requirements of § 13-36-4, or an institution of higher education under the control of the Board of Regents or the South Dakota Board of Technical Education must be expressly designated as being:

(1) A male team or sport;

(2) A female team or sport; or

(3) A coeducational team or sport.

A team or sport designated as being female is available only to participants who are female, based on their biological sex, as reflected on the birth certificate or affidavit provided upon initial enrollment in accordance with  verified in accordance with § 13-27-3.1 13-67-2.

  1. Strike Section 2;
  2. Revise former Section 3 to read:

13-67-2 3 Complaint—Investigation—Adverse Action.

A governmental entity, licensing or accrediting organization, or athletic association or organization may not entertain a complaint, open an investigation, or take any adverse action against an accredited elementary or secondary school, or a school district, or an association meeting the requirements of § 13-36-4 or an institution of higher education,or against any person employed by, or a governing board member of, such an elementary or secondary school, or school district, or institution, or an association meeting the requirements of § 13-36-4, for maintaining athletic teams or sports in accordance with § 13-67-1.

  1. Strike Section 4.

The proposed revisions limit House Bill 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.  The proposed revisions will also remedy the vague language regarding civil liability and the use of performance-enhancing drugs.

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. 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. 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, and in this instance that equal protection afforded women absolutely should apply on our state’s elementary and high school playing fields.

I support this legislation and hope that House Bill 1217, with the changes I am proposing, becomes law. I respectfully request that you concur with my recommendations as to STYLE and FORM.

Respectfully submitted,

Governor Kristi Noem

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82 thoughts on “Governor Noem Returns HB 1217 to Legislature, Suggests Style and Form Changes”

    1. Not at all, Noem is all talk to get into the spotlight but no substance. I still don’t know what she does as the governor, except campaigning. I am sorry I voted for her.

  2. Does this mean they need a 2/3 vote to override her veto?

    That would essentially kill it correct?

    2. Her veto here is amendatory, clearly going beyond “errors in style and form.” The Legislature has wrestled with governors on that concept for years (see https://mylrc.sdlegislature.gov/api/Documents/124476.pdf)

      But to answer your question on the vote required to sustain her veto, it’s just a majority. If a majority in both houses accept her recommendations for change, the bill becomes law with those changes.

  3. It will be interesting to see if there will be any economic consequences there will be with a law like this in South Dakota. Curious as to the outcome of another lawsuit the state be involved in. The state already lost on one of these with the taxpayers getting stuck with the bill.

  4. I am getting sick and tired of this BS.

    I can’t wait to sign it she said on Women’s day and now this.

    Noem failed us!

    1. Was that tweet Maggie or Kristi? Might be why Maggie left.

      The conservative foundational base loves Kristi. the middle and left does not. I’m wondering if the bases foundation just got weakened today.

  5. It’s not style and form, it’s a complete rewrite of the bill. For a group of politicians who are quick to use technical objections to over ride a vote of the people this smacks of hypocrisy.

  6. Here’s the oddity. South Dakota has nonissue because through our local school administrations, they implemented a rule NINE years ago.
    It’s not sexy to just solve a problem, especially to solve it at the local level. It’s just a conservative way to do it. No press. No news release. Just solutions
    The national agenda pushed by the proponents don’t like to talk about why South Dakota has solved this years ago. We need real Republican conservatives, not the fake stuff this bill is selling
    Governor’s style and form is a good start to letting this one bleed out

    3. Perhaps Corey is convincing her things like this don’t look good for a national run. Trying to fight a vote from 70% of your constituents, implementation of a moot law just for appearances.

  7. I am disappointed in this. Its time to stand up for what is right and forget about getting sued or losing money.

    What is rhe rule passed nine years ago om the local level? Will it stand if challenged?

  8. The Style and Form veto proposal put forth by Governor Noem offers commonsense adjustments to a bill that had a laudable purpose but the broad brush solutions in the enrolled bill allowed for some serious exposures to adverse litigation, significant monitoring and verification procedures and the possible exclusion of South Dakota university athletes from national athletic participation.

    But the overarching goal of protecting the rights and safety of our girl’s sports participants guaranteed under Title IX are preserved.

    I hope that both the House and Senate concur with the Governor’s Style and Form recommendations.

      2. It is an amusing twist, is it not, and Mr. Nesiba is frothing at the gums and trying to get his puppet, Ms. Howard, to attack this next.

    3. You may want to look up style and form definitions. Changing the content of a bill is neither style nor form.

  9. We had over three hundred new cases of Covid today of which about five folks will DIE. But the Governor spends valuable time on this? How many of these trans kids that have you so concerned actually asked to be on some athletic team? One? None?

    Get a life, people.

    1. How would the Governor spending her valuable time on new cases of Covid today prevent infections or folks dying? Really now.

    2. elk, you are being ridiculous. The governor is not a vaccinator. I suppose she could be, but I volunteered for the job and haven’t been called up so it seems the state has enough. The vaccinators are the only people actually working to stop the spread of Covid. So if you are not a vaccinator, you aren’t doing anything to stop the disease either.

    3. I suggest you consider getting a life. A few days ago there were something like 30 new cases. I have also checked the hospitalized and that is still at 68, which is the same as it was several days ago. That tells us the cases are not serious. The governor has to spend valuable time on several things at any time. These are just two things. Leave it to you to bring up a non factor in this discussion.

      1. duggersd writes: “Leave it to you to bring up a non factor in this discussion.”

        Leave it to you to bring up a non factor… in legislation.

  11. Well, she blinked. Lots of SDSU, USD, and other alums worried about tournaments. NC pols faced the same blowback with the bathroom bill. Money, fortunately, talks, and this BS walks back to the netherworld of right wing rage

    1. You mean our Universities that are hotbeds of leftist thinking. They could care less about athletics, and are using this as a weak excuse. Her position makes sense.

      1. Mike, the decisions are made with capitalist principles in mind. Find a way to make money off of descrimination and maybe you can get your way!

  12. “I don’t take those young women’s fight to play, like my mom’s, for granted. Our sports are separated for a reason, because of natural physical advantages that boys have over girls and it’s unconscionable to me to think that a woman would be forced, a young woman, would be forced to sit on the sideline because some young man has taken her spot.”

    “And If there’s a lawsuit, in the state of South Dakota, over a bill that we pass like this it is worth every penny. There’s no doubt about it and if our lawsuit relies upon the state proving that sex is an immutable, biological characteristic then I’ll take that case every day…”

    – Rep. Jon Hansen.
    A man of God armed with strength and courage.

    1. If Rep Hansen would have actually read the bill, he might have sung a different tune. Talk is just talk. When there is money on the line, it’s a much different story.

  13. Poorly written bills end up in lawsuits, and if we want the intent to stand legal challenges, then it makes sense to do it right. Lawmakers often pass bills in a hasty manner overlooking the ramifications, and I’m glad Noem has the wisdom to see the problems and propose solutions.

    As far as blinking, the answer is no.

  14. We need to get rid of style and form vetos… this is a joke. Code Council can fix grammar and typos, plus this is not style and form but a complete watering down and revision of the bill.

    1. This is not a style and form veto. This is an amendment because of substantial changes such as dropping section 2 completely. If this is approved it will be an easy legal target and could be declared unconstitutional because of illegal actions by the executive and legislative branches.

  15. What substantively is a watering down of the bill from the stated intention of protecting the competitive field for girl sport participants?

    Also, considering our college teams compete in other states and under the jurisdiction of national associations, our law has no competitive protection to women competitors but could effectively get our women athletes excluded from interstate competition.

    On a side note to Elk: First, Governors have to deal with a lot of issues. Your expectation she only spend her time on Covid is beyond unrealistic. You really need to get help. More importantly, because of vaccinations, during the month of March, we have had only 25 new cases of people over 80 years old and 93 cases of people 70-80. Thus, statistically, the over 2,000 new cases for the first 19 days of March is less than 10. And more directly to your accusation, if the above had gotten vaccinated as the Governor had made available, the projected death toll of all cases in March would be under 2 which are almost all to attributed to the 265 cases of those over 60, a category which should be all vaccinated by the middle of April. Statistically, of the three hundred cases, your projection of five deaths is over 90% high.

    1. I pray that you are right, Troy. But we have a new strain in town that is reported to be over twice as contagious and at least twice as deadly.

      The outlook is changing rapidly. Please be careful for a few more months until the vaccine is more widely administered.

      1. There is absolutely no science except quackery these strains are more deadly and more contagious. Not a single iota. The so called “experts” made this claim within hours of it being discovered and it confirms the maxim “a lie goes around the world before the truth puts on its boots.” And the claim is made by the same quacks who overestimated the contagiousness and virility of the current virus.

        I am done listening to the quacks. They have destroyed enough lives in their utter disregard of poor children, single parent children, people with addiction and other mental health issues. They need to be sued, lose their medical license, and where they are proven to have done so wrecklessly jailed.

          1. Good response. Show me the study and science that shows higher virulence or mortality. Show me where they considered these other people and the virus damage is more serious. Otherwise, I will consider your wow indicative of your misinformed mind being challenged.

            1. Amen Troy. The fanaticism is amazing on the consequences of the new strain. Lots of guesses passed of as truths. See above

              1. OK Troy. OK Lee. Do tell us what experts you rely on for information on COVID-19. I can’t wait.

                1. People who reference actual science. Not quacks who spout stuff with no science.

                  To prove me wrong all you have to do is cite a single actual scientific study of the contagiousness or virility of a single new strain. Just one. BTW, the only one done is on the main virus. It is 30% as deadly and 25% as contagious as the quacks said originally.

                2. How about you doing the same? And wow….you sure have been getting schooled lately.

  16. I suppose you can just keep claiming that all of the experts are wrong even when they are not. If that makes you feel better.

    Then you choose to believe your favorite politician instead. Convenient.

  17. I am saying this again because it is getting pretty thin.

    People who reference actual science. Not quacks who spout stuff with no science. Since there is no actual study, I ignore every person who makes an statement unsupported by science.

    To prove me wrong all you have to do is cite a single actual scientific study of the contagiousness or virility of a single new strain. Just one. BTW, the only one done is on the main virus. It is 30% as deadly for at risk people and 95% less deadly for the healthy and 25% as contagious as the quacks said originally said.

    They are just white collar educated snake oil salesman.

  18. Check with the CDC or Johns Hopkins or Mayo Clinic for the latest information. There are many sources of information on the new strains. But they are new, and completed studies take time. They are relying on preliminary data because that’s the only data available.

    I suppose you’d rather have them do like Donald Trump did last spring and just declare the virus over. We all know how that turned out.

    1. Lol. That are making it up. But at least you are admitting they have no science. That is progress.

      2. Who has “no science”, Troy? Who is it you are talking about? Mayo Clinic? Johns Hopkins? Columbia? CDC?

        That’s the kind of crap that Lora Hubbel spews.

        1. Those people are spouting off without a single study making them less reputable than a shyster who at least doesn’t claim to be an expert.

          When the South Africa strain was first identified, these quacks were saying it was more contagious and virulent even through the two cases were from two brothers or two people who commuted to work together (I can’t recall which was the SA version and which was from another strain) while neither of the two ever exhibited severe symptoms or were hospitalized.

          They are still asserting things for which they have yet to produce a bit of science. None. Nada. Zilch. If it is there, you should be able to find it but you can’t because it doesn’t exist.

          They are just liars in lab coats. They need to be sued by every person who suffers from their BS and jailed if it can be proved they did it with reckless disregard to the health and welfare of children and people with mental health issues.

          1. You deny the science and the studies. Then you demand studies for proof of this or that. Then you deny any of them know anything again. Circular crazy.

          2. Don’t trust the educated?

            Are you trying to prove your own theory? You are educated, Troy.

            1. Elk just find one study. Just one. Not two. Just one.

              Otherwise, they are making it up. By definition.

              And since they imply it is backed by science, they are liars deserving to be sued and jailed.

              1. Variants. There was a study announced in Nature on 3/8. Another was initiated by Pfizer on 2/25. I am sure there are plenty of others in the process of being conducted. As I said, they all take time and these variants are relatively new. Is that a surprise?

                These companies and organizations gather data all of the time and report results regardless of whether it is some 2 year double-blind Troy approved study.

                It doesn’t matter anyway. You choose not to believe anyone but your favorite politicians.

  19. You may want to look up style and form definitions. Changing the content of a bill is neither style nor form.

  20. Returning to the original issue of what’s in the bill, the Section 2, the one about doping, or using performance-enhancing drugs, the requirement that the schools verify the student athletes aren’t doping: who put that in there?
    Curious about what the costs associated with such verification might be, I found an article from 2016 which explained the cost of the testing is about $500 each. When they put that section in there did they consider the price tag??

  21. Debra Owen from the SF Chamber was quoted in the Argus that proponents of 1217 don’t care about the economic impact of the bill. That’s not true. The reality is, as with many things in life, it’s a process of discernment and judgement. Simply put, proponents of 1217 put the safety of our daughters above the concerns of the Chamber.

    The question every member of the Chamber should be asking themselves is it more important to belong to an organization that puts an extra $100 in your pocket, or is it more important to not belong to an organization that doesn’t care if your daughter gets beat up competing against boys?

    David Owen once told me, presumably, tongue-in-cheek, that the Chamber has no morals. You be the judge.

    1. What will you do after this bill gets signed, Fred? After those thousands of trans kids are put in their place… what is next on your agenda?

      Oh wait. There aren’t any trans issues to resolve, are there? You are inventing a problem that doesn’t exist and dragging all of us through your pigpen.

      And you say that the Chamber has no morals?

  22. Wish she would simply have veto’d it. Not for any other reason in that this is one of the most egregious examples we’ve seen of legislators proposing solutions to problems that don’t exist. “Small government republicans”? Not hardly. The sponsors of this bill are no better than Leftist activists proposing their torrents of woke-stupid legislation.

    How about having the courage to do nothing now and then?

    1. I agree, but what has been learned is where the Governor stands and with whom she stands.

  24. In the event anyone is interested, 29 states have introduced similar legislation. The 30th state to protect women’s sports will be introducing their bill in a few days.

    The Mississippi governor just signed thier bill. Five states have advanced the legislation to the second chamber: Alabama, Arkansas, Kansas, North Dakota, and Montana. Many other states are just beginning.

    FWIW

    2. I’d bet that North Dakota’s problem with trans kids is as big as ours. Zip. Zero.

      Looks like they have a few demagogues up there as well.

      1. So says the one who can’t post a single link to back up what he says…..we are all still waiting.

        1. You have already said it. You don’t believe studies conducted by medical experts. Stop pretending like you want more of them. There are dozens of organizations with data and information on new variants. None of which you will believe because it doesn’t fit in with your pre-conceived notions.

          Now you want to believe there is a trans problem so voila… we need legislation. Nice fantasy life you got there.

  25. Elk, so again you admit there is no science saying these new strains are more virulent or contagious. But the experts say they are.

    But they have no study to back it up. So they are making it up. By definition. And since they imply it is backed by science, they are liars by definition.

    Jail them.

    1. Huh? That’s some scientific method you’ve got there, Troy. I’m gonna have a couple drinks, come back here and then… see if you make any sense.

      1. When you show me a study, there will be science. Until then it is just some liars making stuff up.

        You follow liars if you want. I ignore them.

  26. I think if we can at least get some solid statutes in place protecting at the minimum our JR High and High school girls we will get our foot in the door along with many other States and ultimately slam the door shut on these male predators in incremental baby steps. Remember every other governor has vetoed completely any bills similar to this one.

    1. Mississippi Governor signed the bill this year. Idaho’s did last year, but the Supreme Court is reviewing it.

  27. She sure was concerned about the constitutionality of Amendment A. But now she doesn’t seem to be all that concerned about the constitutionality of “style and form” vs a complete rewrite.

  28. Protect our girls? There must be 100s upon 100s of stories out there of trans kids exposing themselves in group showers that lead to bills like this.

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