UPDATED: 11:19 a.m.
PIERRE, S.D. (KELO) — The debate on “fairness in women’s sports” and banning transgender girls from playing girls sports in South Dakota will move the Senate floor.
Senate Bill 46, Republican Governor Kristi Noem’s bill on the topic, is the lone item on the Senate State Affairs Committee’s agenda. The committee is chaired by Gary Cammack (R-Union Center). The nine-member committee has eight Republicans and one Democrat.
SB 46, as amended, passed the committee and moved to the Senate 8-1. Sen. Troy Heinert (D-Mission) was the lone vote against it.
Cammack, Casey Crabtree (R-Madison), Michael Diedrich (R-Rapid City), Helene Duhamel (R-Rapid City), Mary Duvall (R-Pierre), Michael Rohl (R-Aberdeen), Lee Schoenbeck (R-Watertown) and Kyle Schoenfish (R-Scotland) all voted in favor of the bill.
On Friday, there was heavy opposition testimony to SB 46 with only two people testifying in favor of SB 46. You can follow Friday’s discussion in the updates below. Most the opposition testimony came from school representatives and parents of transgender students currently in South Dakota.
In past years, opposition to similar bills like SB 46 included the Sioux Falls Sports Authority and South Dakota Chamber of Commerce and Industry. Neither of those organizations testified against SB 46 Friday.
KELOLAND News will have updates from Friday’s meeting and continuing coverage throughout the day online and on-air.
Sen. Lee Schoenbeck (R-Watertown) moved to pass the amended version of SB 46 and it was seconded by Sen. Casey Crabtree (R-Madison). Schoenbeck said no one knows what the legal outcomes will be and he said Title IX was created for biological reasons. He said it’s an issue, citing a University of Pennsylvania swimmer, and blamed the NCAA for not acting.
Schoenbeck said he believes South Dakota will be sued and he called judges that rule against SB 46 would be “science deniers.”
Sen. Troy Heinert (D-Mission) said the passage of SB 46 will tell transgender children in school South Dakota right now they are not welcome in South Dakota. He applauded the courage of transgender students to follow their hearts. He said every year South Dakota backfills the litigation fund and he estimated the state uses $10 million to defend laws passed by the legislature.
Sen. Michael Diedrich (R-Rapid City) asked Mark Miller about what Title IX requires the state to do. Miller said it comes down a specific section and interpretation of Title IX. He said the state would defend any school that would be sued.
Sen. Heinert asked about the Office for Civil Rights and South Dakota schools ignoring a possible investigation if a complaint is filed. Miller said laws like SB 46 are being passed all across the country.
Miller said SB 46 would not prohibit a girl playing a boy sport.
Mark Miller, Gov. Noem’s Chief of Staff, is defending SB 46. He said biological differences are why there’s men and women’s sports. He said women are losing opportunities by allowing males to compete in men’s sports.
Miller said the Supreme Court has long justified why there’s separate men and women’s sports. He cited U.S. vs. Virginia that said Virginia Military Institute’s male-only admissions policy was unconstitutional. He said the law is on SB 46’s side and said nine other states have passed laws similar to SB 46. He said when the issue reaches to the Supreme Court, the law will be upheld like Title IX.
Miller said the SDHSAA policy doesn’t protect rights. He said a policy is not good enough, but a law is needed.
Jett Jonelis with the South Dakota ACLU is testifying against SB 46. Jonelis cited sports bans legislation in Idaho and West Virginia that have failed in court challenges. Jonelis said SB 46 puts South Dakota at risk of millions of dollars of education funding for a problem that doesn’t exist.
Dr. Dan Swartos, Executive Director with the South Dakota High School Activities Association, said the SDHSAA policy follows Department of Justice guidance to protect Title IX. He said the policy, in place since 2013 has been adjusted but remains supported by all 130+ schools enrolled in the SDHSAA.
Swartos said there’s been one application that has been denied and only one approved instance for a transgender girl to participate. Swartos said he supports the amendment to provide financial coverage to the state and he would like the SDHSAA added for financial coverage for any future lawsuits.
Dr. Wade Pogany with the Associated School Boards of South Dakota said he doesn’t want schools to be harmed by SB 46. He asked lawmakers to not put schools at risk with SB 46.
Rob Monson with the School Administrators said school administrators have dealt with the issue of transgender youth well before the South Dakota legislature took up the topic. He said school administrators support the current SDHSAA policy.
A South Dakota parent giving testimony said SB 46 would directly hurt her daughter.
Diana Miller, a lobbyist for large school districts in South Dakota, said she wants to focus on the issue of transgender girls in S.D. She said in 2016 there were two bills on the issue, two in 2019 and one in 2021. She said the country is stronger because of inclusion.
Miller said the legislature shouldn’t pass bills for problems that don’t exist. She said the amendment is absolutely necessary because lawsuits will come against the state.
Another parent of a transgender student in South Dakota said SB 46 would tell transgender students they are not welcome in their own hometowns. She said her son took social media off his phone before the session began because he didn’t want to see the hate.
Roger Tellinghuisen, a lawyer and lobbyist, said South Dakota taxpayers will pay for the bill for court challenges. He said the bill is political statement and not an issue in South Dakota.
The first proponent testimony comes from Gregory Brown, a professor of Exercise Science at the University of Nebraska-Kearney. He said his testimony is his opinions and not the stance of the school he works at. Brown said boys and men run 15% to 20% than girls and women after age 11.
Brown said science doesn’t support the effects of puberty blocking or hormone therapy. He said SB 46 allows girls and women to compete on a level playing field.
Matt Sharp with the Alliance Defending Freedom told the committee about transgender women winning NCAA college events.
Rachel Oglesby, senior policy advisor, for Noem is presenting the bill. She said girls deserve to compete on equal playing fields. Oglesby said Noem has fought to protect “fairness in women’s sports” since 2018 and cited Noem’s coalition on “Defend Title IX Now.”
Sen. Mary Duvall (R-Pierre) has a proposed amendment changing the word “athletes” to “students throughout the bill and adding a section that the state will “assume financial responsibility for any other expense related to the lawsuit or complaint and incurred by an accredited school.”
Noem’s draft bill titled ‘Protecting Fairness in Women’s Sports’ is similar to one from the 2021 legislative session that in the end did not receive her approval. The main idea for this draft bill is that only athletes listed as female on their birth certificate can participate on women’s sports teams. It would impact athletes from kindergarten through college.
Opponents of the bill say it’s harmful to the state’s transgender youth because it would exclude transgender girls from playing with girls.The South Dakota High School Activities Association already has a policy in place that allows students to participate in activities consistent with their gender identity.
A health care professional’s endorsement is required. The policy handles every transgender athlete sitution on a case-by-case basis. There’s only been one instance where a transgender girl particiapted in a state-sancitoned girls sport.