PIERRE, S.D. — For five years, social conservatives in the South Dakota statehouse had sought to restrict normalizing transgender access to bathrooms, sports and birth certificate changes.
This week, they finally broke through.
With the Senate's dramatic approval of a bill on Monday, March 8, that bans transgender athletes from girls sports, the Rushmore State will now take its first, formal steps toward limiting participation and access for an infinitesimal, though vulnerable group of its citizens.
The ACLU has alluded to the bill’s dubious constitutionality. The Trevor Project, a suicide prevention group, condemned the bill. A NCAA spokesperson said in an email that it “continues to closely monitor” bills limiting transgender participation.
But for the Republicans who've waged a campaign on an issue mostly distant from the day-to-day concerns of their constituents, Gov. Kristi Noem's expected signature means they can finally put a win in their column.
“Flying high and humbly grateful for the SD Senate voting to pass the Fairness in Women’s Sports bill,” tweeted Florence Republican Rep. Fred Deutsch, long a sponsor of transgender legislation.
A South Dakota governor signing a piece of legislation decried as discriminatory — from LGBTQ activists to the Sioux Falls Sports Authority — would've been almost unthinkable in the aftermath of 2016, when Gov. Dennis Daugaard first vetoed a so-called “bathroom bill.”
While running for gubernatorial office in 2018, then-congresswoman Noem told various media outlets that she would sign such legislation, saying she wanted a bill to require “boys to be in boys bathrooms and girls to be in girls bathrooms.”
But, as was widely believed, signing such legislation would be the kiss-of-death for the state's burgeoning hopes to be a regional sports mecca. Cautionary tales of North Carolina or Indiana — who lost money in expensive boycotts brought by LGBTQ groups and leagues such as the NBA — were trotted out to thwart legislators and the governors from the nuclear option.
After Noem took office in 2019, she'd largely been spared such a decision, in parts thanks to a firewall in the state Senate. And the same appeared to be true this year.
Last month, a senate committee unanimously rejected a bill restricting transgender persons from amending birth certificates, a small but vital right, according to transgender activists. Just last week, the session’s second transgender bill — an act to ensure “fairness in women’s sports” — also seemed headed for the graveyard in committee.
But then came a "smoke out" March 4. More than the requisite third of the Senate's membership voted to raise the bill from the dead. And on Monday, March 8, with another 18 members voting to "calendar" the legislation, the debate resumed.
“Our last real fight was for them not to calendar it,” said John Wilka, father to a transgender boy competing in football in suburban Sioux Falls who’d testified against the bill. “We knew then the writing was on the wall.”
Unlike in committee, where Senate Pro Tempore Lee Schoenbeck, a Watertown Republican and attorney by trade, thoroughly dispatched HB 1217 as a “bad piece of legislation” that would compel the state to collect over 60,000 “pieces of paper,” opponents on Monday stood mostly silent. Instead, the rallying cry for the bill's importance — and the pending scourge of transgender girls stealing sports away that would send the country back to a pre-1971 and Title IX athletic world — came from social conservatives, mostly women.
“Men have 66% more upper body muscle than women and 50% more lower-body muscle,” said Sen. Erin Tobin, R-Winner, arguing there is a “10% performance gap” between males and female. She compared “placing biological males” in female sports to doping up on steroids.
Sen. Julie Frye-Mueller, R-Rapid City, also referred to transgender girls as “boys,” saying allowing even one to compete in sports “shatters” a girl’s dreams.
At the last minute, when Sen. Helene Duhamel, R-Rapid City, who in committee spoke personally about her own success as a college athlete in opposition to the measure that she noted affects “so few,” clutched her speech and started to rise, but Assistant Majority Leader Michael Diedrich from the back of the chamber rose to end debate on the measure.
On Tuesday, Duhamel told FNS she'd tried to speak three times during Monday's debate but never got a chance. As a former track athlete at Stanford University, she said she'd hoped to "sway some people" out of their support for the bill by invoking her own experience — as well as that of her college sports-playing daughters — to tell them one could support both women and transgender athletes.
She also lamented that the bill was even "smoked out," sending the complicated subject onto the limelight of the chamber floor, where she said "emotional" testimony can obscure facts.
"It was not the Senate's finest day," Duhamel said.
Ultimately, the Senate voted 20-15, picking up two more votes from the earlier motion to open debate. Cheers were later heard from the rotunda, where supporters gathered, and within minutes Noem promised to sign the bill.
Tuesday, March 9, Rep. Rhonda Milstead, R-Hartford, who sponsored the bill in the House, told Forum News Service her bill “isn’t against anyone.” Asked if her bill is part of a broader campaign to limit transgender rights in the state, she demurred.
“It’s hard to explain,” Milstead said. “I see that maybe we are becoming more aware of the totality of what’s out there.”
The sports bill has been different from other transgender battles in recent years. Just over a week ago, former President Trump vocalized his disdain for “biological boys” who “shattered” female sports records at a speech in Florida. On Monday, U.S. Sen. John Thune took to Twitter to link to an article by West Virginia Sen. Shelley Moore Capito that largely relied on boilerplate language about “biological males” threatening women’s sports.
“This is a nationwide push. This isn't just a South Dakota thing,” Susan Williams, executive director of the South Dakota-based Transformation Project, told Forum News Service Tuesday. She said Monday’s vote took some activists by surprise. “Really, the Senate has killed these things in the past.”
“It’s just soul-crushing,” she added.