On March 19, Gov. Kristi Noem refused to sign South Dakota’s Fairness in Women’s Sports Act, creating a confusing situation from what should be a strongly unifying issue. Fortunately, it’s not too late for Noem to correct course, rather than force the Legislature to go along with a watered-down bill that fails to protect all female athletes.
After declaring her enthusiastic support of the Legislature’s passage of the Fairness in Women’s Sports Act, a bill drawing wide support in polls throughout South Dakota, the governor suddenly flip-flopped last week. Instead of signing the bill, she gutted several of its protections for female athletes.
The bill put before her would have prevented males from participating in female sports from kindergarten through college. The governor now wants to limit that to K-12. The bill also would have empowered female athletes to take legal action if schools or universities establish unfair policies. Noem wants to remove that provision. Both of these edits would substantially weaken the bill, leaving collegiate athletes without legal protection and K-12 students without legal recourse.
The governor has been twisting herself into a pretzel trying to explain her sudden change of heart, and none of her proffered explanations make a whole lot of sense. Just two weeks ago, she tweeted about how eager she was to sign the bill. This week, she says she’s been hearing for months from legal and constitutional scholars that the bill promises legal disaster for South Dakota and its families. What changed?
She asserts that NCAA policy is forcing her hand, but the NCAA has no rule requiring that biological males be allowed on women’s teams. Mississippi, Arkansas, and my own state of Idaho have passed similar legislation, and we did so without conflicting with any NCAA policy.
The governor then suggests the NCAA could punish South Dakota athletes if she signs the bill. But it’s federal law, Title IX, that establishes women’s right to fair play — not the privately run NCAA. The NCAA hasn’t retaliated against the attorneys general in 14 other states who have already announced their support for our Idaho law — part of a large coalition of athletes, legislators, and governors across the country that has felt confident enough to stand together on this issue. And no other governor has bowed to these threats or pressures.
Noem attributes her uncharacteristic fear of major lawsuits on this issue to the worrisome advice of her unnamed “legal scholars,” who assure her she’ll lose those courtroom fights. Yet solid legal experts, including Alliance Defending Freedom, have expressed not only confidence in being able to win such lawsuits but also a willingness to help Noem and her state protect the law.
The governor professed to be following the bill’s development closely yet made none of her current hesitations known during the legislative process leading up to its passage. Now, she says that if state legislators don’t accommodate her sudden proposed changes to this bill, she’ll call them into special session. Again, what’s changed over the last two weeks?
What hasn’t changed is the essential issue: the right of female athletes to compete with each other rather than being forced to compete against males, who inevitably bring insurmountable biological advantages to most competitions they enter. At stake is the future of girls nationwide whose athletic victories, for many of them the key to college scholarships as well as further athletic opportunities, depend on fairness and a level playing field in athletics.
As a former Division 1 athlete myself and 15-year Division 1 women’s basketball coach, I understand that. Idaho Gov. Brad Little, my fellow Idaho legislators, and I also understand what it means to take a political stand against cancel culture and the substantial pressure increasingly applied by big business and “woke” elites. But we did it. We’re still standing. We think the lives and future of our state’s women and girls are well worth the risk.
Noem had convinced us she shared that commitment and courage. We were strengthened knowing she would be standing alongside us. Now, she’s throwing all these willing allies aside, and the young women of South Dakota, as well, in an effort to assuage a voracious political minority that will never be satisfied, no matter how much she gives in to it.
I hope Noem will rediscover her courage and sign a bill that offers real protections to athletes at every level. There’s still a place for her in this worthy fight, standing beside the rest of us.
Barbara Ehardt represents the 33rd District in the Idaho House of Representatives.
