In South Dakota, Noem bends — partially — on transgender ban


SIOUX FALLS, S.D. — South Dakota Gov. Kristi Noem initially appeared eager to deliver a win to social conservatives on a top, culture war issue.

Just minutes after the GOP-led state legislature passed a bill banning transgender women and girls participating in women’s sports leagues, the Republican governor fired off a tweet declaring herself “excited to sign” the bill.

Noem’s enthusiasm faded surprisingly fast. Within days, the governor, who is widely viewed as eyeing a run for higher office, found herself caught in a political mess, facing tough lobbying from business interests, legal threats and talk of betrayal from social conservatives who had been reassured she was on their side.

The governor shied away from the bill when her office showed signs of turmoil — a key member of her staff who oversaw both policy and communications announced she was leaving. Ultimately, Noem crafted an escape plan that left plenty angry and tarnished her hard-charging reputation: a partial veto.

Noem’s missteps have landed her at the center of a rift within the GOP. Its leaders find themselves caught between trying to please both business groups and hard-line social conservatives. Even Noem, who has built a reputation of not backing down from fights, has struggled to articulate a clear position on the ban.

“She was considered a shining star in the GOP with a bright future. No more,” Michael Farris, the head of an advocacy group, Alliance Defending Freedom, that backed the bill, wrote on Facebook after Noem announced her partial veto.

“We don’t need leaders who lack the courage to stand up to the corporate bullies who want to turn our country into an amoral wasteland filled with compliant consumers,” Farris added.

Noem’s move Friday limits the ban to elementary and high school sports and excludes collegiate athletics. The decision was meant to placate business groups and key political backers who did not want to see the NCAA pull tournaments from the state.

Students and families affected by the bill say their requests to meet with the governor have been ignored, and their opposition has received scant attention from GOP lawmakers during the debate.

“I’m just really exhausted with lawmakers targeting my community for political favor,” said Louise Snodgrass, a transgender person who protested outside the governor’s mansion this month. “I would welcome a conversation with (Noem).”

GOP lawmakers are also enraged with Noem, complaining that she left them out of the calculations in her about-face and has now overstepped the bounds of her office.

Noem on Monday attempted to undo some of the damage, unveiling a website where people could sign on to show their support for using Title IX, the federal law that forbids sex discrimination in education, to ban transgender women from women’s sports. At a news conference, she declared her allegiance to the cause of “protecting women’s sports” and enlisted a lineup of local female athletes and former professional athletes, including former football player Herschel Walker, to praise her efforts.

The news conference, held in a hotel conference room, appeared to be a hastily assembled affair: One attendee got into an argument with the governor over marijuana legalization and none of the promised celebrity endorsers was physically present, instead offering support through video messages and a statement.

“Let’s take action that really gives us the result of protecting women’s sports,” Noem said, likening the bill to a “participation trophy” that would inevitably be struck down if the NCAA sued.

But it is not clear if the bill, even as rewritten by Noem, would stand up to legal scrutiny. A similar law enacted in Idaho last year was temporarily blocked by a federal court, though Noem has proposed taking out some sections that could lead to legal battles.

In a statement before the news conference, Alliance Defending Freedom dismissed Noem’s effort as nothing more than damage control.

“Politicians launch belated ‘initiatives’ for political theater and to create distractions,” said the group’s general counsel Kristen Waggoner.

Noem attempted to salvage her record, saying: “I’m still excited to sign the bill. Nothing’s changed.”

But she is trying to change many parts of the bill. Besides the exclusion of collegiate athletics, Noem is proposing two sections be struck from it entirely, using a move known as a “style and form veto.” Such vetoes are usually used to clean up technical language in the bill, not alter its scope or power.

That has led state lawmakers who passed it to call Noem’s move unconstitutional. They are striking at another aspect of Noem’s record that has been at the heart of her political rise — her claim that she would never overstep the bounds of her office, even during a crisis like a global pandemic.

House Speaker Spencer Gosch, a Republican, released a statement saying he was “greatly concerned” that the governor did not have the authority to make substantive changes to the bill.

But Noem argued at the news conference that as long as the Legislature accepted her proposal, it could fit within the bounds of the state constitution.

Republican state Rep. Rhonda Milstead, the bill’s primary sponsor, said she met with an attorney from the governor’s office in December, before the legislative session, and received an assurance that if the bill made it to the governor’s desk, she would sign it. But while lawmakers debated the bill, the governor’s office did not weigh in, according to Milstead.

However, key business groups and figures lobbied heavily against the bill, including the South Dakota Chamber of Commerce. One member of the board of First Premier Bank, which recently worked with Noem to donate $100 million to a state scholarship endowment, traveled to the Capitol, in Pierre, to testify against the bill. If the NCAA canceled its tournaments, it would cost millions of dollars, putting up to 100 full- and part-time jobs at risk, warned the board member, David Zimbeck. Others worried that Amazon would cancel plans for a distribution facility in the state.

Meanwhile, the group of people perhaps most affected by the bill — transgender children and their families — say they have been left out of the conversation entirely.

Susan Williams, the director of the advocacy organization Transformation Project, said she has tried to set up a meeting between the governor and families of transgender children, but has heard nothing from Noem’s office. The bill could be devastating for transgender teens, they say, but Noem denied her initiative has anything to do with transgender people.

“We believe Gov. Noem cannot make an informed decision without meeting with transgender South Dakotans to learn about their experiences, the daily challenges they face, and the damage this bill will inflict on their lives,” Williams said.

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