This story has been updated to reflect the following correction: The ACLU currently has cases filed in Idaho, West Virginia, and Tennessee. The Human Rights Campaign has filed a lawsuit in Florida.
PIERRE, S.D. (KELO) — Despite heavy opposition, Senate Bill 46, Governor Kristi Noem’s legislation that seeks to ban transgender girls and women from sports, will move to the Senate floor following a committee hearing Friday morning. Opponents of the bill say that the committee’s advancement of SB46 sends the message that transgender people are not welcome in South Dakota.
The hearing featured testimony on both sides of the bill with three people speaking in favor of SB46 and ten people speaking in opposition.
Proponents of SB46 included senior policy advisor to Governor Noem, Rachel Ogelsby, Professor Greg Brown of the University of Nebraska Kearney and Matt Sharp with Alliance Defending Freedom. All three spoke about the physical differences between the biological sexes and how the bill would “protect” girls wishing to compete in school athletics at any age.
“Girls deserve to compete on a level playing field,” Ogelsby said in her testimony.
In a statement Friday, Governor Kristi Noem said that if passed, SB46 will give parents the opportunity to hold schools and institutions accountable in court.
“Parents will be able to sue to play, not to pay,” Gov. Noem said.
Jett Jonelis is an Advocacy Manager for the American Civil Liberties Union of South Dakota and gave testimony Friday opposing the bill. When KELOLAND News spoke to Jonelis following the committee hearing they were quick to point out the legal precedent set by other states, like Idaho, when it comes to transgender athlete bans.
In 2020, Idaho attempted to pass a similar bill that would bar transgender females from sports, but the bill ultimately failed when U.S. District Judge David Nye concluded that the plaintiff challenging the act would likely succeed in establishing the law as unconstitutional.
“In making this determination, it is not just the constitutional rights of transgender girls and women athletes at issue but, as explained above, the constitutional rights of every girl and woman athlete in Idaho,” Judge Nye said in his conclusion.
In South Dakota, Jonelis says the legislature would have to prove there is a need for a law like this.
“There has been no evidence of transgender dominance in sports,” Jonelis said. “The South Dakota legislature has not offered the necessary justification.”
In the testimony given on Friday, Dan Swartos with the South Dakota High School Activities Association said that they have had a transgender policy in place since 2013. In the time since then, only one transgender female has participated in school sports, and one transgender boy applied to participate but was denied.
“There are not a lot of transgender students participating in sports right now and I believe that part of that is because they see these consistent attacks on transgender people in the state,” Jonelis said.
Jonelis also points to the June 2021 statement from the U.S. Department of Education that confirms that Title IX protects students from discrimination on the basis of sexual orientation and gender identity. Jonelis believes that this nullifies the argument presented in the committee hearing from Governor Noem’s Chief of Staff, Mark Miller, saying that SB 46 would protect and defend Title IX.
When asked by Senator Michael Diedrich (R-Rapid City) about the legal issues that may arise with Title IX, Miller answered that he believes they will not go to court but also that Title IX would be upheld in court.
Another point of contention in the hearing was whether South Dakota would lose federal education funding if SB46 was made law. Miller said nine states with similar bills have not lost any funding, but Jonelis said four of those states are currently being challenged in court. The ACLU has filed cases in Idaho, West Virginia, and Tennessee and the Human Rights campaign has a lawsuit filed in Florida. Jonelis says it is still unclear whether federal funding could be lost.
Currently, Tennessee and Florida have cases pending, Idaho has a preliminary injunction and West Virginia was enjoined, according to Jonelis.
For Susan Williams, founder and executive director of the Transformation Project Advocacy Network, Senate Bill 46 is personal.
Williams is the mother of a transgender child.
Williams’ son came out to her and her husband in 2017.
“Neither my husband or I had any experience with the topic. We had never knowingly met a transgender person,” Williams told KELOLAND News following the committee hearing.
After researching and reflecting, Williams’ family allowed their son to transition socially by changing his pronouns, name and getting a haircut. Williams says her son tries to stay off of social media during the legislative session.
“It’s just very upsetting for transgender individuals to hear this every year; it’s detrimental to their mental health. They feel as though they are not welcome in their own state. They feel attacked,” Williams said.
Williams spoke at Friday’s committee hearing about what it is like to be the mother of a transgender child. She said Friday’s decision to advance the bill to the Senate floor is “deeply disappointing.”
“Trans kids are not a problem to be solved, and it seems that this legislation comes up every single year wanting to solve a problem that doesn’t exist,” Williams said.
Rob Munson, Executive Director for School Administrators of South Dakota, echoed that sentiment from Williams in his testimony on Friday.
“The only time this becomes an issue is when this body gathers and makes it an issue,” Munson told the committee.
SB46 is not the only legislation in this year’s session that seeks to limit the participation of transgender athletes in school sports. House Bill 1006 brought forward by Representative Rhonda Milstead (R-Sioux Falls) looks to “promote continued fairness in women’s sports.”
In the 2021 legislative session, HB 1217 was not signed into law by the governor. The bill was sent back to the legislature for “style and form” changes. Critics of HB 1217 worried that the inclusion of college athletics in the bill might affect South Dakota’s relationship with the NCAA.
Executive Director Thomas Lee said the Sioux Falls Sports Authority is following the 2022 legislative session and the progress of the bills on transgender participation in sports.
“Our ultimate goal as an organization is to continue recruiting and hosting elite national events and championships that bring a significant economic impact to the city and state,” Lee said in a statement to KELOLAND News.
Friday’s passing of SB46 to the Senate floor is only the beginning of the process that Williams and Jonelis say their organizations are watching closely.
The Transformation Project Advocacy Network has organized six rallies across South Dakota to take place Sunday, January 16, in Brookings, Pierre, Rapid City, and Sioux Falls. At the ACLU, Jonelis says they are fighting “tooth and nail” to protect the rights of transgender people in South Dakota.
“It can feel like you are alone at this time, but you are not,“ Jonelis said. “There are people who care about you and love you and will never stop fighting for you.”