May 25, 2022

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Sports Really Satisfies

National political climate aided passage of SD transgender sports ban in 2022 session – Mitchell Republic

Some of the political momentum behind South Dakota’s transgender sports ban, signed into law by Gov. Kristi Noem in early February, can be traced not to the legislative process in Pierre but to competitions and controversy involving University of Pennsylvania swimmer Lia Thomas.

Thomas swam collegiately as a male before transitioning and competing as a female in 2021-22 after undergoing hormone therapy, becoming the first openly transgender athlete to win an NCAA Division I championship in any sport. Her success was seized upon by conservative politicians and media as proof that “boys competing against girls” was a threat to competitive fairness in female athletics.

In South Dakota, one of several battleground states over transgender rights, getting Senate Bill 46 passed and signed into law was not as much a story of who fought for the measure as a matter of which groups did not argue against it, with the Lia Thomas situation changing the narrative.

“It struck a chord,” said lawyer and lobbyist Dave Zimbeck, who represents the Sioux Falls Sports Authority, one of several organizations that publicly opposed transgender sports legislation in 2021 but which stayed out of the fray this year.

The group’s strategy changed due to shifting public sentiment and the belief that the National Collegiate Athletic Association, which stages championship events in South Dakota, no longer plans to pull events from states that pass transgender legislation.

“Lia Thomas came along, and Fox News and other outlets made her the poster child for their cause,” said Zimbeck, whose organization works to lure sporting events to Sioux Falls in conjunction with First Premier Bank and Sanford Health. “A lot of people who were in the middle on this issue saw the physical stature of (Thomas) and her success and had trouble getting past that. We made the decision that there was a lot of futility in jumping in and taking a big stand, that this thing was on a fast track to approval.”

South Dakota is one of 12 states that have passed laws that ban transgender females — people assigned male at birth who identify as female — from competing in women’s and girls’ sports, with SB 46 set to take effect July 1.

These types of legislation have sparked a national debate about the balance between inclusivity and competitive integrity, as well as on the scope of civil rights for transgender students.

Organizations such as the South Dakota Board of Regents, South Dakota Chamber of Commerce, Greater Sioux Falls Chamber of Commerce and Visit Rapid City also remained neutral this year after previously working to defeat transgender sports bans. In 2021, these groups played a role in Noem refusing to sign House Bill 1217 despite the Republican governor earlier declaring support for the measure, a reversal that drew heat from far-right conservatives in South Dakota and nationally.

At this year’s session in Pierre, when Noem brought her own bill and touted it as protecting fairness in female sports, she encountered less resistance.

Critics called it a solution without a problem, since South Dakota has had one transgender female compete in high school sports since the state activities association adopted its transgender policy in 2013. Yet the threat of repercussions from a business perspective had lessened.

Gov. Kristi Noem has characterized South Dakota’s new law as a way to protect fairness in girls sports. Executive director Dan Swartos said that the SDHSAA has had one transgender female athlete go through the system since 2013 and fewer than five trans males out of 40,000 students who participate annually in high school sports in South Dakota.

Photo courtesy Sioux Falls Argus Leader

Sioux Falls is scheduled to host a Division I men’s hockey regional in 2024 and 2026, in addition to a Division II volleyball championship in 2024 and Division II wrestling championship in 2026. The city also hosts the Division I Summit League basketball tournament each year at the Denny Sanford Premier Center, with winners advancing to the NCAA men’s and women’s tournaments.

Despite the transgender sports ban, Sports Authority officials expect those events to stay in Sioux Falls, though future bid cycles could be in flux. “It’s a moving target right now,” Zimbeck said, citing the challenges faced by the NCAA to keep up with an evolving legal and cultural issue.

Educational organizations such as the Associated School Boards of South Dakota and the South Dakota High School Activities Association have consistently argued against transgender sports bans, pointing out that they run counter to federal Title IX guidelines and recent court decisions establishing transgender individuals as a protected group.

“If you have state law on one side mandating a certain position and federal law and the courts seeing it differently, you’re in a difficult situation,” said Wade Pogany, executive director of the Associated School Boards of South Dakota.

The South Dakota High School Activities Association drafted its policy for transgender athletes in 2013, responding to a recommendation by 77 percent of superintendents in a statewide survey. The move came in reaction to guidance from the Office for Civil Rights under the Obama administration that transgender status was protected under Title IX, not just in theory but in legal actions taken by the Department of Justice.

SDHSAA Executive Director Dan Swartos said the organization has had one transgender female athlete go through the system (she graduated several years ago) and fewer than five transgendered males out of 40,000 students who participate annually in high school sports in South Dakota.

Swartos, who testified against the legislation, is well aware that the Office for Civil Rights under President Biden asserts that banning transgender students from participating in extracurricular activities that correspond to their gender identity is a Title IX violation. Federal judges in Idaho and West Virginia have issued rulings that prevented such actions from taking effect, with appeals pending.

“It’s a little nerve-racking that we’re in a position where if we follow state law then we’re not following guidance from the federal government,” said Swartos. “It puts us in a position to violate one or the other.”

That conundrum could be costly, as the SDHSAA is not listed among the entities covered in the law’s wording that the “attorney general shall provide legal representation at no cost to that entity or individual.” In West Virginia, attempts by the state activities association to remove itself as a defendant in the lawsuit were denied by the judge.

Those anticipating challenges to South Dakota’s law likely won’t have to wait long. Susan Williams, executive director of the Transformation Project, a nonprofit advocacy group in Sioux Falls, said several potential plaintiffs have emerged for a court challenge on Title IX and Fourteenth Amendment “equal protection” grounds.

“At this point, we have a couple of transgender girls who were planning on playing sports next school year,” said Williams. “There are a few East River and a couple West River. It’s a thing that had crossed their mind, like, ‘maybe I’ll try out for volleyball,’ or ‘maybe I’ll go out for gymnastics or play soccer with my friends.’ Of course, now that is out of the question. They’re pursuing all their options.”

Minter, of the lesbian rights center, said he believes the South Dakota law will be challenged in the federal Eighth Circuit Court rather than waiting to see how the Idaho and West Virginia appeals unfold. He also believes the lawsuit will be filed before July 1.

“The goal is to bring a lawsuit that prevents the discriminatory law from ever going into effect,” Minter told South Dakota News Watch. “We can’t just stand by and allow this type of extreme law that openly discriminates against an entire class of students to go unchallenged.”