SIOUX FALLS, S.D. (KELO) — Governor Kristi Noem issued two executive orders concerning transgender students taking part in sports in South Dakota. The executive orders direct the State Department of Education and the Board of Regents to enforce rules allowing only females based on their biological sex at birth, to participate in girl’s and women’s sports.

The executive orders are directed at K-12 schools and South Dakota’s public six public universities. According to the South Dakota Secretary of State, executive orders as issued by the Governor are not laws, but do have the same binding nature. Executive orders are usually based on existing constitutional or statutory powers of the Governor.

This is where professor Michael Card, of USD Political Science Department sees a potential problem for the Governor’s executive orders.

“So it’s not clear that the Secretary of Education can do much in that respect, except on a year by year basis, the school board can make that delegation, but it’s not clear the Secretary of Education can do that, again I’m not an attorney but that’s what the statute seems to read,” said Card.

The second executive order comes down to this. Can the Governor tell the board of regents what to do? Card says the Board of Regents was created by the constitution, subject to limitations placed on them by the legislature.

“It’s not clear the governor has a great amount of authority over the South Dakota Board of Regents to direct them to do much of anything,” said Card.

According to Card, this is part of the checks and balances in our constitution. Ultimately, he believes the executive orders are likely headed to court.

Executive orders usually carry the most weight when they are issued during an emergency.
But Card says because there are no current cases involving transgender student-athletes, an emergency declaration isn’t warranted.