SIOUX FALLS (AP) – When South Dakota Gov. Kristi Noem issued executive orders to bar transgender girls from girls' sports leagues, it appeared to be a quick fix to what had become a political mess, but opponents of the orders say they amount to little more than a suggestion.
After Noem issued the order, the Department of Education on Tuesday sent school administrators and school boards a draft of Noem’s policy to consider, but the agency acknowledged in a statement that “school boards and the High School Activities Association are independent entities” and that it expected the discussion with both “to continue during the anticipated special legislative session.” School boards and administrators say they are in no hurry to implement Noem's order.
“Really, in a nutshell, all we are going to tell our folks to do is stay the course of what we have right now,” said Rob Monson, the director of the School Administrators of South Dakota.
The high school activities association currently evaluates applications from transgender athletes who want to join teams that align with their gender identity. The policy says it’s designed to allow athletes “to compete on a level playing field in a safe, competitive and friendly environment, free of discrimination.”
Even though the activities association reports there are currently no transgender girls playing in girls’ sports and transgender advocates say it sends a hurtful message to transgender children, Noem said the orders “temporarily address the problem” while she worked with lawmakers to come to an agreement on a ban. She indicated there would be a special session in May or June.
While the governor’s spokesman Ian Fury said that “school districts are expected to implement" Noem's policy, school boards are grappling with what to make of it. Wade Pogany, the executive director of the Associated School Boards of South Dakota, said the organization was analyzing the order, but said he “didn't have any good answers” on whether it would be adopted.
Cynthia Mickelson, the board president for the Sioux Falls School District, said she would recommend waiting to act on Noem's order until after the Legislature's special session. She felt it didn't make sense to adopt a policy that could be upended in a matter of months.
She said that after watching Monday's developments, which started with the House rejecting Noem's partial veto and culminated with the governor's orders, she sent out a single word Tweet: “Nothingburger.”
The bill failed after negotiations between the Republican governor and the GOP-dominated Legislature broke down. After Noem faced tough lobbying from business groups concerned about the economic ramifications of a law that discriminated transgender people, she issued a “style and form veto” to exclude collegiate athletics, as well as strike sections that required annual tracking of athletes sex at birth and provided a way to sue for violations of the ban. The House rejected Noem's proposal as an unconstitutional use of the style and form veto, which is usually used to clean up technical language.
But conservative lawmakers, exasperated with the governor, say there is currently little appetite for bending to Noem’s will during a special legislative session, which could potentially leave them in a stalemate similar to the one that resulted in the bill’s demise. They had decried Noem's orders as little more than an effort to salvage her reputation with social conservatives nationwide who had criticized her for issuing the partial veto.
“The governor has no ability to create law. These don’t have the effect of law,” Republican House Speaker Spencer Gosch said of Noem’s orders. “This is just her sending out a letter saying I’d like you to do this.”
He added that Noem’s office has communicated an evolving stance on the issue and that a “lack of preparation on her part doesn’t create a sense of urgency" for lawmakers to act.
Meanwhile, transgender advocates like Susan Williams, who leads the Transformation Project, said that while Noem's orders may have little immediate practical effect, they sent a message that “trans people are not welcome in South Dakota.”
In the last three weeks, as the ban became a prominent issue in the state, four families with transgender children have reached out to her, struggling with how to help their child face bullying, she said. In the previous year, she only had that happen once.
“Trans kids and their wellbeing were being used as a prop to win back (Noem's) nationwide base," Williams said.