PIERRE, S.D. — Gov. Kristi Noem is once again feuding with the Biden administration, this time over a proposed rule that would overturn a “fairness in women’s sports” law that took effect in South Dakota in 2022.
The change would throw participation by transgender athletes on teams aligning with their gender identity to a case-by-case review process.
On April 6, the federal Department of Education released the proposed change in the context of Title IX, a set of laws passed more than 50 years ago that regulate sex discrimination in scholastic athletics at any school or university that receives federal funding.
According to a summary of the proposed change, “schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.”
However, the change would also “allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury,” especially at the “competitive” high school and collegiate level.
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After entering the proposal into the public record, the department opened a 30-day comment period on the potential rule changes.
“South Dakota will not allow this to stand. We will lead. We will defend our laws. Only girls will play girls’ sports,” Noem wrote in a tweet on Thursday, April 6, responding to the proposal. “President Biden, we’ll see you in court.”
If implemented as written, the changes would likely bring South Dakota law in conflict with federal Title IX standards.
“South Dakota continues to be a leader in protecting fairness in sports for biological women,” U.S. Rep. Dusty Johnson told Forum News Service. “President Biden should acknowledge the complexities of this issue and work to protect women competing in sports rather than promote an unequal playing field.”
Under current South Dakota law, a 2022 change that followed an executive order by Noem of similar content, any sports team at any level in South Dakota must be designated “based on the biological sex at birth of the participating students” as either female, male or coeducational.
The state statute further mandates that “only female students, based on their biological sex, may participate in any team, sport, or athletic event designated as being for females, women, or girls.”
Schools or other oversight bodies that fail to follow these parameters could face civil lawsuits from individuals on the affected teams.
Samantha Chapman, the advocacy manager for the South Dakota ACLU, called the proposal a “welcome step in the right direction” from the Biden administration.
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“I don't know that I have heard of any specific cases of athletes from South Dakota being denied the ability to compete currently, based on transgender status,” Chapman said. “However, you know, we certainly advocate for and celebrate equal and fair inclusion of everybody to participate in student athletics.”
In terms of the different levels of competition considered in the case-by-case oversight by schools or athletic associations, the federal Department of Education wrote that “elementary school students would generally be able to participate on school sports teams consistent with their gender identity,” since “teams for younger students often focus on building teamwork, fitness, and basic skills.”
At the collegiate level, the implementation of South Dakota’s current law — as well as the potential case-by-case oversight proposed by the Biden administration — falls to the state Board of Regents. The board appears in lockstep with Noem in terms of opposing the proposed change.
“During the 2022 legislative session, Gov. Noem and the South Dakota Legislature provided clear direction on this topic,” Nathan Lukkes, the board’s incoming executive director and current general counsel, wrote in a statement to Forum News Service. “The law in South Dakota is settled, and until we are compelled to do otherwise by a competent authority, we will follow the law of South Dakota.”
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.
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