South Dakota Governor Issues Executive Orders Rejecting Trans Athletes

FILE PHOTO: South Dakota governor Kristi Noem speaks to the press on behalf of Senator Kelly Loeffler
FILE PHOTO: South Dakota governor Kristi Noem’s executive orders target trans athletes.
REUTERS/Elijah Nouvelage

South Dakota Governor Kristi Noem has signed two executive orders aiming to restrict transgender women and girls and some non-binary people from school sports teams.

This mandate comes after Noem declined to sign a bill from state lawmakers prohibiting transgender athletes from playing on teams that match their gender identity. Although the South Dakota governor initially praised the bill, she eventually killed the legislation, citing possible legal issues for the state.

Noem issued two different executive orders — one for grade school sports and the other for college sports — and although the pair of directives have similar wording, there are notable differences between them. Both orders start off by stating that “In South Dakota, only females, based on their biological sex… shall participate in any girls’ or women’s athletic event,” but the college order is based on the sex listed on individuals’ “birth certificate issued at time of birth,” while the order pertaining to grade schools is based on individuals’ sex listed on “their birth certificate or affidavit provided upon initial enrollment.”

The grade school order further directs the South Dakota Department of Education to “establish a policy consistent with this Executive Order and distribute the policy to all public school districts in the state.” That order is confined to “a public school, a school district, or an association,” while the college-based order is limited to the Board of Regents, which is a governing body overseeing six public universities in the state. The college-based order asks the Board of Regents to “take any and all steps necessary within the law of the state to legally implement policies consistent with this Executive Order.”

Some have questioned whether Noem’s orders amount to an outright ban on transgender athletes, while others are wondering how much legal power the orders have. The difference in wording, however, is notable nonetheless. It appears that the college-based order specifically refers to “birth certificate issued at time of birth” in an effort to prevent the inclusion of transgender student-athletes who have amended their respective birth certificates.

“Only girls should play girls’ sports,” Noem said in a written statement on March 29. “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.”

In a letter to state lawmakers, Noem wrote, “The orders resolve the serious drafting errors I identified that made HB 1217 significantly different from any other state legislation pending across the country.”

In the letter, Noem also demanded that state lawmakers address this issue during legislative sessions in May and June.

“My executive orders temporarily address the problem,” Noem wrote. “I want to see this issue resolved through legislation.”

These executive orders are among several legislative attacks on transgender Americans. On March 29, state senators in Arkansas passed a bill banning gender-affirming medical care for trans youth, marking the first bill to clear both chambers in any state. In the span of two days, the governors of Arkansas and Tennessee signed bills that ban transgender women and girls and some non-binary individuals from participating in school sports.

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