Noem Could Still Settle the Score on Girls' Sports

Noem Could Still Settle the Score on Girls' Sports

March 25, 2021

It's difficult to imagine things getting much worse for Governor Kristi Noem (R-S.D.), who's faced an avalanche of criticism since deciding not to sign the state's popular girls' sports bill. Wednesday, days after running into what one conservative commentator called "a buzz saw," her team's frustration finally boiled over. After an unsuccessful media tour, which only dug the hole deeper, Noem's communications manager lashed out that his boss had been the victim what he called "conservative cancel culture." But if anything got canceled, conservatives fired back, it was South Dakota women's rights.

As irritating as the firestorm might be to the governor's office, it's not without cause. Her reversal on the policy came as a huge surprise to her base -- and others. Equally surprising was the crusade she mounted afterward to defend it. Choosing to launch a coalition, instead of embracing the legislative one that already existed, she disappointed a movement hoping for concrete action. "Some 30 states are considering laws similar to the one Noem just vetoed," Joy Pullmann writes for the Federalist. "Is it her position that instead of passing these laws, they should join her in signing a petition instead? How does that more effectively protect and defend in daily American life the reality that the two sexes exist and have meaningful differences?"

Regardless, groups like Alliance Defending Freedom, who've been representing female athletes in these cases for years, don't buy the governor's line that this is a legally-doomed effort. To prove it, they offered to pick up the tab for defending it in court. And yet still, Noem seems unwilling to offer any substantive reasoning for her veto beyond the nameless "legal scholars" who predicted the law's failure.

This decision isn't about policy, ADF's Kristen Waggoner insisted on "Washington Watch," it's about politics. And while ADF doesn't normally get involved on that side of the debate, "when we see it being bungled this badly, we feel an obligation to speak out." Incredibly, she went on, "Governor Noem has unfortunately now become the first governor in the United States to eliminate new protections for college female athletes, gutting the ability for all women and girls to have any recourse against policies in women's sports that would allow men to compete in on women's teams."

She's offered a variety of explanations for that, many of which Waggoner -- a true legal scholar who's won cases at the Supreme Court -- debunked. "It's hard to keep up with the [excuses] she's giving for the bad decision that has been made. She began by justifying her actions and saying, 'Well, the NCAA has a policy and, you know, I'm just trying to abide by the NCAA's requirements.' But then we smoked that out, and the NCAA has no policy that requires men to compete on women's teams. Then, the bar was moved to something else." There is no conservative, respected legal voice, Kristen argued, that would ever suggest the law allows men to compete on women's teams. "In fact, federal law would say the opposite."

States have the authority to decide who plays what. And for the leaders in those states, it requires "real leadership" to insist on common sense. "Sometimes that means taking some heat and making some hard decisions. But that's what's right for girls and women. They should be given equal opportunities, not and not have their officials pander to woke corporate ideology, which is exactly what's happening here."

When Kristen was asked what the difference is between Noem and the governors in Idaho and Mississippi who've signed these laws already, she was blunt: "Courage." "It is understanding that if we continue to cave to Amazon and continue to cave to woke corporatism, we are losing our rights. We're losing opportunities for women and girls to be able to compete on a fair playing field. You stand up to bullies, real leadership does that." This idea, she went on, that Noem is going to lead some sort of coalition is ridiculous. "There already is a broad coalition that actually has the Left and the Right on it -- made up of athletes, legislators, other governors, other attorneys general in 14 different state attorneys general have signed a brief in support of the Idaho law. So we want to have her a part of this movement, but it has to do more than just give mere lip service."

The coalition, Noem's "Defend Title IX Now" website, went up 24 hours before her press conference, Kristen points out, after it was exposed that there is no NCAA policy tying the governor's hands. Obviously, she said, this wasn't meant to be a sincere effort. "This is about repairing political damage to one's political reputation and credibility, and it's smoke and mirrors, it's political theater." Join the coalition that already exists by signing the law, she argued.

FRC's Travis Weber, also an attorney, has taken some issue with Noem's rationale that this law won't hold up in court. If that were the case, he explained on Wednesday's "Washington Watch," it doesn't line up with what else we've seen from the governor in South Dakota. "She's been suing to block a marijuana referendum in her state and putting resources behind litigation. She's called for a Pregnancy Nondiscrimination Act to be passed -- and these have been sued in other states. And so she's publicly taken positions where she has backed litigation and the resources of her state in litigation. Clearly, she's not afraid of litigation. And so for her to claim that that's the reason here, that it's causing her to pause, just doesn't make sense. We need a better explanation than that."

Our team has tracked 92 bills moving around the country, all pushing back against the transgender agenda in some form -- including 32 bills (in 18 states) that aim at banning gender transition procedures, and 58 bills (spanning 28 states) that protect women's sports. The number of governors with the opportunity to do what Mississippi's Tate Reeves (R) just did -- signing one of these bills into law -- is growing.

Governor Noem still has a chance to join them, as FRC, ADF, and other conservatives have all pointed out. "She needs to reverse course and engage conservatives," Travis said. "Right now, she's not really pleasing anyone on the other side of these bills. And so I don't really see what this is getting her." If she digs deep and finds the same courage she had in the COVID debate, conservatives would welcome her back with open arms. "Sign the bill, join our coalition," Kristen said, "and we can all move forward together."