SIOUX FALLS, S.D. (KELO) — The ‘Fairness in Women’s Sports’ bill is a violation of federal law according to opponents of the bill.

Senate Bill 46 (SB 46), brought forward by Governor Kristi Noem to ‘protect fairness in women’s sports’, continues to advance through the legislature and was heard on the House floor Thursday afternoon. The bill would ban transgender athletes from competing in women’s sports in South Dakota but on Thursday Representative Rhonda Milstead proposed Amendment 46E that would allow students to sue for damages if they lost a spot on the team or financial scholarship due to a transgender athlete being on the team.

The bill, as amended, will be debated next Tuesday in the House.

In a news conference on Thursday, the governor said she is not worried about potentially losing NCAA events if this bill is signed into law, and she “absolutely” plans to sign the bill if it makes it to her desk.

Opponents of the bill worry that this bill would place South Dakota in violation of federal law, specifically of the 14th Amendment and Title IX.

What is Title IX?

Title IX is a regulation created under the Education Amendments of 1972 that prohibits sex-based discrimination in education for all schools or educational institutions that receive federal funding.

This applies to all components of a school or institution, according to Michelle Johnson, Director of Equal Opportunity and Title IX Coordinator at South Dakota State University. Gender discrimination includes several categories: sexual assault, sexual harassment, dating and domestic violence, and stalking.

“Every component of the university must comply with Title IX,” Johnson told KELOLAND News on Thursday. That means that academics, athletics, residential living, and all activities and associations in a school or university must be in compliance with the law.

If there is a report or complaint that alleges a violation of Title IX, the institution is responsible for ensuring that those reports are reviewed and resolved.

“If there is a complaint at the federal level, then Office of Civil Rights, or the Equal Employment Opportunity Commission will reach out to the university or to the school in question, and will conduct a review of how they handle the situation to make sure that accurate processing and policies and procedures occurred,” Johnson explained.

If there were to be a violation of Title IX, Johnson says that the federal government can impose a fine on the institution or there could be an impact on federal funding.

“Ultimately they could lose their federal financial status or ability to have federal financial aid.”

Title IX is codified federal law which means that it can be amended through the legislative process. In June of 2021, the United States Department of Education issued a Notice of Interpretation saying that Title IX protects from discrimination on the basis of sexual orientation and gender identity.

President Joe Biden issued two executive orders in 2021 that focused on “combating discrimination on the basis of gender identity or sexual orientation” and guaranteeing an “educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.”

It is these pieces of federal law that opponents say the ‘Fairness in Women’s Sports’ would be in violation of.

Opponents say Senate Bill 46 will violate Title IX, U.S. Constitution

Several people gave testimony to the House State Affairs committee on Wednesday stating that the passage of the bill would be in violation of federal law. Dan Swartos with the South Dakota High School Association (SDHSAA) told the committee that their organizations transgender athlete policy is currently in compliance with federal law.

“You are going to change our policy and we are going to be sued,” Swartos told the committee.

Libby Skarin, Campaigns Director for the American Civil Liberties Union (ACLU) of South Dakota, North Dakota, and Wyoming, told KELOLAND News on Thursday that it’s important to remember that there are two legal frameworks that SB 46 would violate: The Equal Protection Clause of the 14th Amendment and Title IX.

Skarin said that courts in the United States “…are finding that sex discrimination includes discrimination on the basis of sexual orientation and gender identity.”

One of those courts was the Supreme Court of the United States.

In Bostock V. Clayton County, Georgia in 2020, the court decided that discrimination in a place of employment because a person is transgender or because of their sexual orientation is a violation of Title VII, a federal employment law.

“While it is true that the issue in front of the court in the Bostock case was employment discrimination, what we saw was the Supreme Court saying that discrimination on the basis of sex includes discrimination against transgender people,” Skarin said.

A District Judge came to a similar conclusion in a 2020 case in Idaho in response to a bill that would ban transgender athletes from female sports. The judge, in that case, ruled that the bill would not only affect the constitutional rights of transgender girls, but “every girl and woman athlete in Idaho.” Judge David Nye concluded that the plaintiff in the case would likely be successful in establishing the law as unconstitutional.

In South Dakota, Skarin says that there are already policies in place on a local, and national level, regarding transgender athletes.

“The fact that this entire debate exists when there is a complete lack of any problems about this in South Dakota, and while we have both local policies, collegiate policies, and the NCAA policies… I think all of those things lead to a compelling conclusion that this bill isn’t needed.”

Swartos told the House committee that there are no transgender girls competing in South Dakota right now. He added that in the history of the policy only one transgender female competed in sports and in the past two years there has only been one application from a transgender person to compete, which was denied.

Could South Dakota lose federal education funding?

In 2021, Governor Noem created the “Defend Title IX” coalition to “protect fairness in women’s sports.” The website for the coalition states that they believe the federal government should “Enforce Title IX in a way that protects fairness for women’s sports.” It also states that the NCAA and other athletic bodies should not take action against states or schools that “acts to protect fairness for women.”

While the coalition was announced 10 months ago, there has been very little public action with the coalition from Governor Noem or the politicians and organizations that signed the pledge.

Those in favor of SB 46 have made the argument that other states that have similar laws in place and have not lost funding nor seen the NCAA pull participation from those states.

At this time, Idaho, West Virginia, Florida, and Tennessee are being challenged in court for similar laws on transgender athletes. The cases in Tennessee and Florida are pending while Idaho has a preliminary injunction, and West Virginia was enjoined.

Skarin says there is still a risk of losing federal funding.

She also points to the Biden administration’s “strong commitment” to upholding Title IX on the basis of gender identity and sexual orientation as a concern for possibly losing “millions and millions of dollars” in funding to South Dakota schools.

“In plain terms, that means, if you are in violation of Title IX, and your school or your state, is found to be violating Title IX’s prohibition on sex discrimination, your federal funding could be at risk,” Skarin said.

While the future of the bill is still up in the air Thursday, Skarin says she doesn’t understand the urgency surrounding the bill when she doesn’t believe there seems to be any imminent problem at this time.

“We’re hearing a lot of, frankly, fear-mongering about trans people. We’re hearing a lot of claims that this bill will empower women while also telling girls that they’ll never be as fast or as strong or as athletic as boys.”