PIERRE, S.D. (KELO) — Her communications director said Tuesday that Governor Kristi Noem has already provided lawmakers with what she wants from a special legislative session on restricting medical marijuana and keeping people who were born males out of girls’ sports.
The Republican governor announced late Monday afternoon she was working with legislative leaders to schedule a special session in May or early June to address those two topics and to adjust state government’s budget to accept additional federal COVID-19 aid.
Noem also issued two executive orders Monday. The first directs the state Department of Education develop a statewide policy that K-12 girls’ or women’s sports allow only those born as females. That would be similar to what she wanted to accomplish through her style-and-form veto of HB 1217.
State Education Secretary Tiffany Sanderson sent a memo to schools throughout South Dakota on Tuesday. It laid out a draft policy for school boards to consider.
The policy says, “To participate in K-12 school-sanctioned athletic activities designated as events for girls, only females, based on their biological sex listed on their birth certificate or affidavit provided upon initial enrollment in accordance with SDCL 13-27-3.1, shall participate in girls’ or women’s athletic events in South Dakota.”
But blogger Cory Heidelberger said Noem is overstepping. He tweeted Tuesday, “Read the law: school boards and the SDHSAA have legal authority over high school sports. The Governor cannot order schools to play or not play any athlete. Governor Noem’s Executive Order 2021-05 is illegal. https://sdlegislature.gov/Statutes/Codified_Laws/2042254“
The second order directs that only people born as females “should participate” in girls’ and women’s athletic events at South Dakota’s public universities. Noem wanted public universities out of 1217 because her legal advisers had warned she had a low chance of success in court against the NCAA.
“Governor Noem has provided legislative text to protect fairness in women’s sports, as well as fix concerns with IM 26,” spokesman Ian Fury told KELOLAND News. “She’ll continue to work with legislators between now and special session on each of the issues she highlighted. We’re currently implementing policies to protect fairness in women’s sports pursuant to her executive orders.”
Legislative leaders received a briefing late Monday afternoon from Lieutenant Governor Larry Rhoden, the governor’s chief of staff Tony Venhuizen and her chief legal counsel Mark Miller. The discussion covered the executive orders and the special session.
“The governor’s plans were finalized after the results of Monday’s session was known, and the leaders were briefed shortly after session,” Venhuizen said.
House members voted 67-2 to reject the governor’s style-and-form changes on 1217 Monday; a majority of 36 was needed to send it across to the Senate. Representatives then fell two ayes short, 45-24, of overriding the resulting veto of 1217 as the Legislature had passed it; a 2/3 majority of 47 was needed to send it to the Senate. The Senate had already adjourned when the House result was announced.
There was no mention of medical marijuana during either chamber’s official proceedings Monday. Noem had suggested earlier in the month that lawmakers could consider her proposal. A conference committee of House and Senate members agreed to disagree and gave up on legislation that sought a six-month delay of the July 1 start of medical marijuana that nearly 70% of voters OK’d in November.
The governor left the Capitol earlier Monday afternoon to monitor firefighting in the Rapid City area. One of those in the meeting room Monday was Senator Lee Schoenbeck. He said Tuesday the executive orders were “the governor’s prerogative.
Schoenbeck said Noem has consulted with lawmakers about the special session “The COVID funds in the federal bill will make a special session important for South Dakota,” he said. “The other issues, she can add them to the call for the special session. What happens on those topics, and what the Legislature sees as needing special session attention is above my pay grade. One-hundred-five legislators will decide that.”
Dan Swartos, executive director for the South Dakota High School Activities Association, said Tuesday the organization was aware of the executive order on K-12 sports.
“As written, the executive order does not task the SDHSAA with anything. We would be happy to work with our member schools and/or the South Dakota Department of Education as appropriate on this matter. In the interim, we are focused on our spring sports and fine arts events and are thankful for the opportunity to allow kids to compete and perform throughout this unprecedented year,” he said.
The Associated School Boards of South Dakota had no response to the executive order, executive director Wade Pogany said.
The state Board of Regents that oversees South Dakota’s six public universities had opposed 1217. The governor appoints the regents. Their executive director, Brian Maher, said Tuesday they received the executive orders when the governor released them after lawmakers finished veto day Monday.
“The regents, executive director, and staff are currently reviewing this order and understanding its impacts,” Maher said. “We strive to comply with all applicable regulatory authority, while concurrently promoting and enhancing opportunities for our next generation of student-athletes. We expect more details on this topic to emerge during an upcoming legislative session, and we will continue to monitor the situation and make any necessary adjustments as we prepare for the next season of competitive sports activity.”