Last week, South Dakota Governor Kristi Noem left us scratching our heads.
After the South Dakota legislature overwhelming voted to pass the Fairness in Women’s Sports Act, Gov. Noem declined to sign the bill into law—instead sending it back to the legislature requesting some pretty significant changes.
After her outspoken support for the bill, this was a puzzling move to say the least. Particularly since Gov. Noem’s proposed changes essentially gut the bill, removing protections for collegiate athletes and eliminating a female athlete’s legal remedy when her rights are violated.
As ADF General Counsel Kristen Waggoner said: “Gov. Noem has taken the legal teeth out of this bill.”
Gov. Noem claimed that she was making these changes for two reasons. But a closer look at her claims show that they are misguided at best.
1. Gov. Noem claims that NCAA policy prevents her from protecting female collegiate athletes.
There is no NCAA policy that requires public schools to allow males who identify as females to compete on women’s teams. The NCAA leaves that up to individual states. And by removing protections for collegiate athletes, Gov. Noem is only delaying the injustice of forcing female athletes to compete against men until they reach college.
2. Gov. Noem claims that South Dakota would lose in court if its Fairness in Women’s Sports Act were challenged.
Gov. Noem says that Title IX protects female athletes in K-12 settings—and it does. But Title IX also applies to college athletes. The bottom line is that the law is on the side of the Fairness in Women’s Sports Act. And if Gov. Noem still has concerns about potential legal challenges, ADF stands ready to defend the law to protect female athletes in South Dakota.
Despite these obvious issues, Gov. Noem pushed forward, announcing on Monday that she was launching a coalition in support of Title IX and female athletes.
But she’s missing one important detail: There’s already a coalition standing up for women’s sports.
A Coalition Defending Women’s Sports
ADF has been defending female athletes such as Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti since 2019. These courageous female athletes are challenging a Connecticut Interscholastic Athletic Conference policy that allows male athletes to compete against girls. Under this policy, two male athletes in the state won 15 championship titles and over 85 chances to advance to higher levels of competition that belonged to deserving girls.
ADF is also representing Idaho State University athletes Madison Kenyon and Mary Kate Marshall, joining with the State of Idaho to defend similar legislation passed last year. These girls have both lost on the track to a male athlete, and witnessed that male athlete crush the competition and take first place in the women’s mile at the NCAA Division I Big Sky Conference Championships. Madison and Mary Kate watched as their teammate was bumped off the podium and into fourth place in that event—when she should have earned a bronze medal.
As these cases demonstrate, the threat to women’s athletics is severe—both at the K-12 and the collegiate levels.
The fact is that males will always have physical advantages over women, regardless of how that male identifies. Science and overwhelming daily experience tell us that males are generally bigger, faster, and stronger than females. They have larger hearts and lungs, denser bones, and stronger muscles. No amount of testosterone suppression can undo all those advantages.
When we ignore these biological realities, we threaten the very existence of women’s sports, and women get hurt.
ADF and a large coalition of athletes, legislators, governors, attorneys general from 14 states, and many others have been honored to stand up for women’s sports in courts and legislatures across the country.
And we’re seeing that stand start to pay off.
Idaho and Mississippi have already passed bills like the Fairness in Women’s Sports Act in their states. In Arkansas, a Fairness in Women’s Sports Act is awaiting the governor’s signature. And more than 20 other states are pursuing legislation adding protections for female athletes, too.
We welcome Gov. Noem to join in this coalition. We are better and stronger together.
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