SIOUX FALLS, S.D. (KELO) — In 2022, Governor Kristi Noem signed a bill into law that prohibited transgender female athletes from participating in sports that aligned with their gender identity. Now, the Biden administration is working to enshrine gender identity into Title IX, rendering that ban invalid.

In 2021, the Biden administration issued a Notice of Interpretation stating that Title IX protected from discrimination based on sexual orientation and gender identity. This week, following the Supreme Court’s decision to not reinstate a law that would ban transgender athletes in West Virginia from competing on female teams, the Biden administration doubled down on the notice of interpretation with a proposed change to Title IX. The rule would block states from implementing transgender athlete bans but would allow some exceptions for schools and teams to create their own restrictions to ensure fairness.

“South Dakota will not allow this to stand,” Noem tweeted on Thursday. “We will lead. We will defend our laws. Only girls will play girls’ sports. President Biden, we’ll see you in Court.”

KELOLAND News reached out to Governor Noem’s office with questions for this story but haven’t received a response.

The ACLU of South Dakota welcomes the decision from the federal government.

“I would say that this is a clear rejection of open and baseless efforts to categorically ban all transgender youth from playing alongside their peers and sports,” advocacy manager Samantha Chapman said Friday. “We welcome this as an opportunity to build on a starting point to ensure that all transgender youth can play free of needless barriers or intrusions into privacy. And hopefully this also speaks to future protections for transgender individuals United States.”

When the transgender sports ban was being debated in the South Dakota legislature in 2022, the ACLU and other opponents worried the ban would place South Dakota in violation of Title IX and the 14th amendment of the U.S. Constitution. Dan Swartos with the South Dakota High School Activities Association expressed concern that the state would be sued if the ban went into effect.

Prior to the South Dakota ban, the SDHSAA had a policy in place, compliant with federal law, to address the inclusion of transgender athletes in team sports. At the time, Swartos said there were no transgender girls competing in South Dakota sports. Swartos added that in previous years there had only been one application from a transgender person to compete in sports, which was denied.

While the Supreme Court decided against allowing the West Virginia law to take effect, Justices Samuel Alito and Clarence Thomas issued a dissenting opinion stating that the high court could likely be addressing this “important issue” in the “near future.” Chapman hopes that this week’s decision means that is not the case.

“The Supreme Court did choose not to hear this case, which to me sends a message that the Supreme Court is not in a place that is interested in issuing a ruling on transgender policies related to sports,” Chapman said. But, she continued, it’s not yet clear what that means for other issues relating transgender rights.

“We are seeing unprecedented historic attacks on the LGBTQ Two Spirit community. There are 44 states that have at least introduced a bill seeking to limit gender affirming care or make it illegal for minors to seek gender affirming care,” Chapman said. “This change in the Title IX rule… it’s a rejection of these kind of laws and bills that are being introduced and this messaging, it’s demonizing and targeting and bullying, transgender people across the nation.”

The proposed Title IX rule will be published to the Federal Register where it will be open for 30 days of public comment. The process to finalize the rule is long and could take months, if not years, to implement.