S.D. lawmakers will have their pick of different proposals to restrict female-sports participation

Capitol News Bureau
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PIERRE, S.D. (KELO) — The topic of fairness for females in K-12 and college sports will return again to roil the waters of the South Dakota Legislature in the 2022 session that opens Tuesday.

Two versions of legislation are pre-filed. Both would limit participation based on biological sex at birth.

They would specifically restrict female sports to people born as females. That would bar people born as males from participating in sports designated for females.

Representative Rhonda Milstead and Senator Maggie Sutton are making another attempt at the ban.

Their 2022 bill is generally similar to their 2021 bill that Governor Kristi Noem vetoed.

The Milstead-Sutton bill will again start in the House of Representatives, as it did last year.

Rather than watching from the sideline, the governor is directly taking up the cause this year. The governor’s bill will start in the Senate.

Both bills would allow an athlete to sue an accredited school, school district or institution of higher education governed by the state Board of Regents or the state Board of Technical Education.

South Dakota’s six public universities have sports teams. The four public technical colleges don’t, at this point.

Neither bill would require that K-12 schools gather written annual statements from every athlete, as the Milstead-Sutton bill proposed last year.

The governor’s bill also would allow an athlete to sue the South Dakota High School Activities Association.

The association already has a formal procedure for determining whether to allow participation by a transgender athlete.

The two somewhat different measures were among the 58 House bills and 75 Senate bills already pre-filed as of Monday morning for the 2022 session that is scheduled to run through March 28.

The governor has zigged and zagged on the issue of fairness in female sports.

Last year, no one from the governor’s office or her administration testified in favor of or against Milstead and Sutton’s bill during its House committee hearing or at its Senate committee hearing.

The House passed the bill, but a Senate committee blocked it. Sutton used a procedural move known as a smoke-out to force it to the Senate floor, where it eventually passed.

Opposition to various parts of the legislation came from the school boards association, the school administrators group, the high school activities association, the Board of Regents, Sioux Falls Sports Authority, and South Dakota Chamber of Commerce and Industry,

The governor sent a message of support on Twitter for the bill as it was resurrected in the Senate.

But after it passed, she issued a style-and-form veto that pointed out shortcomings her advisors had identified in the bill.

House Speaker Spencer Gosch said the governor’s veto message went beyond the technical revisions that a style-and-form veto usually addressed.

Meanwhile, the governor announced formation of a national coalition to defend Title IX. Noem issued a column March 26, 2021, explaining her position.

The House of Representatives overwhelmingly refused the governor’s style and form veto, then fell two ayes short of the two-third majority needed for passing the bill over the governor’s veto.

That same day, the governor issued two executive orders. one for K-12 schools and one for the Board of Regents whose members govern South Dakota’s six public universities and are appointed by the governor.

In the K-12 order, she told the state Department of Education to establish a policy and distribute it to all public school districts in the state.

In the regents order, she also told the board to “take any and all steps necessary within the law of the state to legally implement policies” consistent with the order.

With the orders, Noem issued a statement and sent a letter to legislators that said she wanted to call a special session for May or June when the topic and several others could be addressed. That didn’t happen.

On December 14, the governor announced she planned to offer her version of female-sports legislation for the 2022 session. ACLU South Dakota described it as “clearly fueled by a fear and misunderstanding of transgender people in our state.”

The governor likely will talk about the issue as part of her State of the State address to the joint assembly of legislators set for 1 p.m. CT Tuesday in the House chamber.

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