Governor Noem returned HB 1217 to the South Dakota Legislature with Style and Form suggestions.  Specifically, the Governor suggests four Style and Form changes to address the potential unintended consequences of HB 1217 as originally enrolled.

Governor Noem’s Full Letter:

Dear Legislators,

I respectfully return to you House Bill 1217 with the following recommendations as to STYLE and FORM.

I believe that boys should play boys’ sports, and girls should play girls’ sports.  As the legislative findings in the original version of the bill set out, “[w]ith respect to biological sex, one is either male or female[,]” and “[p]hysiological differences between males and females include ‘those most important for success in sport: categorically different strength, speed, and endurance.’”

That is why House Bill 1217 properly provides that females should have opportunities to play youth sports on teams comprised of females and against teams of females. Unfortunately, as I have studied this legislation and conferred with legal experts over the past several days, I have become concerned that this bill’s vague and overly broad language could have significant unintended consequences.

For example, Section 2 of House Bill 1217 requires a student athlete to verify, each year, that the student “is not taking and has not taken, during the preceding twelve months, any performance enhancing drugs, including anabolic steroids.”

Presumably, this requirement was included to address a student taking these drugs as a part of a gender transition, but House Bill 1217 is not limited in this way. Rather, if a male student athlete failed to make the football team, and later learned that another student on the team was taking steroids without disclosing it, the student who didn’t make the team would be entitled to sue both the school and the steroid-using student for damages.

In addition, Section 2 creates an unworkable administrative burden on schools, who under its terms must collect verification forms from every student athlete, every year, as to age, biological sex, and use of performance-enhancing drugs; and furthermore must monitor these disclosures throughout the year so that if “reasonable cause” is found of a false or misleading form, the school can take action to avoid civil liability.

I am also concerned that the approach House Bill 1217 takes is unrealistic in the context of collegiate athletics. In South Dakota, we are proud of our universities’ athletic programs, and in particular the great strides we have taken to gain national exposure and increase opportunities for our next generation over the past two decades.

South Dakota has shown that our student athletes can compete with anyone in the country, but competing on the national stage means compliance with the national governing bodies that oversee collegiate athletics. While I certainly do not always agree with the actions these sanctioning bodies take, I understand that collegiate athletics requires such a system – a fifty-state patchwork is not workable.