Transgender sports bill dies after veto override fails

PIERRE, S.D. - A bill banning transgender women from competing in sports programs in South Dakota has died after a House vote fell short of the two-thirds majority required to override the veto it received after Gov. Kristi Noem sent it back to the legislature.

The House voted 45-24 to overturn the veto, two votes shy of a two-thirds majority, effectively killing the bill that put South Dakota in the national spotlight in the debate of legislating transgender athletes.

Earlier Monday, lawmakers voted against considering Noem’s style-and-form veto on House Bill 1217. Noem then sent the bill back to the legislature, telling lawmakers they treat it as a vetoed bill, though denied her action should be considered a veto. After some quibbling between House leadership and Noem’s office over the use of the “veto” term, the House ultimately met and voted on it as if it were a vetoed bill.

HB 1217 was the only bill discussed when the legislature reconvened Monday for “Veto day.” Both chambers have now officially adjourned for the 2021 session.

UPDATE, 1:45 p.m.: The path of a bill banning transgender women from competing in South Dakota sports programs took another twist Monday as Gov. Kristi Noem sent the bill back to the legislature after lawmakers voted against considering her style-and-form veto.

Noem’s office sent a letter to lawmakers Monday afternoon saying the bill should be treated as a vetoed bill, though in the same letter she insisted her action should not be considered a veto.

The bill at the center of this legislative hot potato is House Bill 1217, which South Dakota lawmakers approved in the 2021 session. Noem issued a style-and-form veto to exclude college sports from the bill over concerns of potential legal challenges from the NCAA. Some lawmakers pushed back against the move, saying the governor was misusing the style-and-form veto to fundamentally alter the bill. This type of veto is usually used to clean up technical language in a bill.

What happened Monday?

The South Dakota Legislature reconvened Monday for “Veto Day,” where lawmakers consider bills vetoed by the governor. The House voted overwhelmingly against considering Noem’s style-and-form veto, sending it back to her desk. Noem’s office promptly responded with the letter, which cited an article in the state Constitution codifying style-and-form vetoes:

“Bills with errors in style or form may be returned to the Legislature by the Governor with specific recommendations for change. Bills returned shall be treated in the same manner as vetoed bills except that specific recommendations for change as to style or form may be approved by a majority vote of all the members of each house. If the Governor certifies that the bill conforms with the Governor’s specific recommendations, the bill shall become law. If the Governor fails to certify the bill, it shall be returned to the Legislature as a vetoed bill.”

Noem’s letter said she cannot certify the bill “conforms with my specific recommendations,” so she is returning the bill to the legislature. However, she said the action of returning the bill is “not a veto.”

Why all the quibbling over language?

The governor has parsed her language carefully since announcing her style-and-form veto of the bill last week. Noem says she supports the bill, but she believes the bill as it was written will ultimately be challenged and likely struck down in the courts.

The move drew criticism from some of Noem’s fellow conservatives. Fox News host Tucker Carlson challenged Noem on the topic when she appeared on his show, saying the governor was “caving” to the NCAA.”

Noem has defended her actions, saying passing a bill that will likely get struck down amounts to a “participation trophy.” She also announced the launch of a group called “Defend Title IX Now.” She said if the coalition gains enough support, it could serve as a springboard to challenge the NCAA on the issue at a national level.

What’s next?

Regardless of the language, the fate of the bill is now in the hands of the legislature. If a two-thirds majority in both chambers vote to override the veto, the bill will become law. If a vote in either chamber comes up short, it will be dead.

Earlier story

South Dakota lawmakers have voted down Gov. Kristi Noem’s veto altering a bill that banned transgender women and girls from competing in sports programs in the state.

The House of Representatives voted 67-2 against considering Noem’s style-and-form veto on House Bill 1217 on Monday.

Lawmakers are reconvening in Pierre for the so-called “Veto day,” where the legislature considers any bills vetoed by the governor. A two-thirds majority is required to override a veto. HB 1217 was the only bill Noem challenged during the 2021 session.

Noem used a “style and form” on the bill, excluding university athletics from the bill. The governor said while she supported the bill, she believed her changes were necessary to defend it from legal challenges from the NCAA.

Some lawmakers spoke out against Noem’s veto, calling it unconstitutional. Such vetoes are usually used to clean up technical language in a bill, not change its scope or power.

The bill now moves back to the governor’s desk. Noem has the option of signing it into law or issuing a full veto.

Copyright 2021 Dakota News Now. The Associated Press contributed to this report.