Dakotas Take Diverging Legislative Paths on Trans Bans

South Dakota governor Kristi Noem issued two executive orders this week designed to limit participation on women's and girls' school sports teams to people assigned female at birth.

After signaling support for restriction legislation passed by state lawmakers earlier this month, Noem declined to sign it over concerns the law would not survive legal challenges. Instead, she asked lawmakers to revise the legislation's language. As reported by South Dakota Public Broadcasting's Lee Strubinger, major conservative backlash ensued and on Monday, South Dakota lawmakers failed to come to an agreement.

"Only girls should play girls' sports," Noem tweeted Monday evening. "Given the legislature's failure to accept my proposed revisions to HB 1217, I am immediately signing two executive orders to address this issue: one to protect fairness in K-12 athletics, and another to do so in college athletics."

As reported by the Argus Leader of Sioux Falls, the second order addressing the collegiate level isn't binding and only suggests that the Board of Regents take action.

On Tuesday, South Dakota education secretary Tiffany Sanderson informed high school superintendents and school board presidents that they are expected to comply.

"It is therefore the policy of the Department of the Education that, in order to participate in K-12 school-sanctioned athletic activities designated as events for girls, only females, based on the biological sex reflected on their birth certificate or affidavit provided upon initial enrollment ... shall participate in girls' or women's athletic events in South Dakota," Sanderson wrote in a memorandum distributed to school districts.

South Dakota High School Activities Association executive director Dan Swartos told the Argus Leader earlier Monday he was still assessing what sort of response would be necessary to comply with Noem's order.

According to SDPB, Swartos says that since 2013 South Dakota has had a policy that any transgender athlete wanting to play school sports must acquire documentation from their physician that they identify as transgender. Then, an independent hearing officer determines if the athlete has any competitive advantage. Since the policy was instituted, only one transgender girl athlete has been allowed to play girls' sports in the state.

Meanwhile, the Grand Forks Herald reported that North Dakota senators on Monday converted a bill to restrict the participation of transgender girls in K-12 sports into a study, blunting the lightning rod legislation before it advanced out of the chamber.

The amended version advanced on a 32-15 vote, leaving the fate of a North Dakota transgender athlete ban in question.

"I fear it will only lead to litigation," said the amendment's author, Kristin Roers (R-Fargo), who cited a federal ruling that blocked the implementation of a similar bill in Idaho last year and noted that the proposal would conflict with the existing policy of the North Dakota High School Activities Association. The NDHSAA has opposed the bill.

"My question is who would pay for that?" asked Roers. "Is it the individual school that is sued? The activities association? The state of North Dakota? Where would that money come from for that suit?"

The scope of the bill had already been narrowed on the Senate side to apply strictly to K-12 sports after many opponents warned that earlier provisions restricting college athletics would ensure federal lawsuits and possibly lead to punitive action from organizations like the NCAA, which has long allowed collegiate transgender athletes to compete under their identifying gender, the Herald reported.