Noem issues ‘style and form’ veto that would substantially alter girls’ and women’s sports bill

Capitol News Bureau

Protestors gather on Jan. 26, 2021, in Pierre in opposition to HB 1076. Photo courtesy of South Dakota Public Broadcasting.

PIERRE, S.D. (KELO) — South Dakota’s governor issued her first veto of the 2021 legislative session Friday. And it was a doozy.

Republican Kristi Noem wants state lawmakers to make big changes in HB 1217 that originally sought to prohibit athletes who were born males from participating in female sports in K-12 and public colleges. She is calling it a “style and form” veto but wants several sections removed and other sections altered.

Her news release explaining the veto is here. She wants legislators to eliminate the restriction that was sought on the state’s public universities and, in the views of some of the bill’s supporters, water down it enough to make it almost meaningless.

“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,” she said.

Representative Rhonda Milstead sponsored the legislation with deep support by Republican co-sponsors. House members passed it 50-17. Senator Maggie Sutton was lead sponsor in the Senate, where it won approval 20-15 after supporters used a procedural maneuver known as a smoke-out to force it out of a Senate committee where it had been stopped, and then got it on the Senate debate calendar with no votes to spare. 

Sutton said Friday she was “very disappointed” that the governor issued a style-and-form veto.

“The recommended changes will substantially change the content of the bill. The legality was removed, which leaves the bill with a very weak authority. Removing the collegiate is simply saying that biology matters in high school, but not in college,” Sutton said.

Milstead said Noem’s action violated the section of the South Dakota Constitution that outlines some of the governor’s veto power. That section says: “Bills with errors in style or form may be returned to the Legislature by the Governor with specific recommendations for change. Bills returned shall be treated in the same manner as vetoed bills except that specific recommendations for change as to style or form may be approved by a majority vote of all the members of each house. If the Governor certifies that the bill conforms with the Governor’s specific recommendations, the bill shall become law. If the Governor fails to certify the bill, it shall be returned to the Legislature as a vetoed bill.”

Said Milstead, “It is overreaching by trying to legislate law as the executive branch.”

Lawmakers will consider Noem’s proposed changes when they return to the Capitol on Monday, March 29, and any other vetoes the governor has yet to reveal.

A full veto, where a governor is trying to stop legislation, requires 2/3 majorities in the House and the Senate to override. A style-and-form veto requires simple majorities in the two chambers to make the governor’s recommended changes.

If the Milstead-Sutton measure became state law as passed, the legislation would conflict with the NCAA’s 10-year trend toward inclusivity for transgender athletes at the collegiate level. The NCAA issued a statement last year against the Idaho law that was a model for the South Dakota legislation.

The South Dakota High School Activities Association and ACLU-South Dakota fought its passage.

The activities association’s executive director, Dan Swartos, said from courtside at Rapid City, “We have not yet had a chance to review the full style and form veto proposed by Governor Noem, as our executive staff is currently at state basketball tournaments across the state. We were opponents of the bill through the session, but also respect the legislative process. We will examine the proposed veto further in the upcoming week to determine how the potential changes to 1217 impact our current policy.”

Noem had tweeted earlier this month that she was “excited” to sign it into law “very soon.” The veto crossed up Milstead, who earlier in the session had dropped her support of legislation that sought to force the governor to publicly report her security costs. Milstead had talked about the female-sports legislation at the national CPAC convention in Florida.

The veto brought a strong statement of betrayal from the head of the American Principles Project, a Washington, DC-based group that identifies as “the only national pro-family organization engaging directly in campaigns and elections.”

Said APP president Terry Schilling in a statement Friday, “We are extremely disappointed to see Gov. Noem break her word on this critical legislation. For more than a week, Noem’s office has frozen out advocates of HB 1217 and instead taken advice from the bill’s most vocal critics, which include the South Dakota Chamber of Commerce and the South Dakota Board of Regents.

“Gov. Noem’s veto would scrap the vast majority of the bill text and would strip protections for female athletes in collegiate sports in the state,” Schilling continued. “Additionally, it would eliminate all reasonable enforcement mechanisms, neutering the legislation so much as to render it meaningless. All the while, Noem continues to claim dubiously that she still supports the bill, hoping South Dakotans will ignore the fact she was responsible for killing it.”

Schilling accused the Republican governor of standing with President Joe Biden, a Democrat, and “the radical left against protecting women’s sports.” He said she “has irreparably damaged her standing with both her own constituents as well as Americans nationally who have been looking to her for bold leadership. This betrayal will have political consequences.”

The ACLU also issued a statement from the other side, criticizing Noem because she didn’t use her veto power to stop it altogether. The organization said her proposed changes would continue to discriminate against transgender youth and would leave the state potentially vulnerable to costly litigation.

“House Bill 1217 was never about protecting fairness in women’s sports. It was about discrimination and the erasure of trans girls, pure and simple,” said Jett Jonelis, ACLU of South Dakota advocacy manager.

“Gov. Noem’s decision not to issue a full veto of this anti-transgender bill into law is disappointing. We are relieved, however, that the organizing by trans youth and pressure from business leaders, educators and parents has given us the chance to fight to block this bill from passing,” Jonelis continued.

She added, “Codifying discrimination like this does nothing but hurt some of the most vulnerable people in our state. South Dakota should be better than this. The South Dakota Legislature should take this moment to altogether abandon this bill that will hurt trans youth, all girls and women who want to play school sports, and South Dakota’s economy.”

Five years ago, then-Governor Dennis Daugaard used a veto to block HB 1008 from Representative Fred Deutsch and Senator Brock Greenfield that sought to restrict bathroom access. The bill was patterned after a North Carolina law that was later repealed.

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