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What impact could Gov. Noem’s executive orders have?

Published: Mar. 30, 2021 at 5:55 PM CDT
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SIOUX FALLS, S.D. (Dakota News Now) - South Dakota remains at the center of a national conversation about transgender athletes competing in sports.

On Monday, lawmakers declined to make changes to the transgender sports bill as requested by Governor Noem. In turn, the Governor issued two executive orders on the matter.

Both executive orders say that transgender girls and women cannot participate in girls’ and women’s sports, in K-12 and collegiate athletics.

The orders are tasking the South Dakota Board of Regents and Department of Education with creating policies that follow that order.

On Tuesday, the Department of Education Secretary sent out a draft policy for school boards to consider. It reads:

To participate in K-12 school-sanctioned athletic activities designated as events for girls, only females, based on the biological sex reflected on their birth certificate or affidavit provided upon initial enrollment in accordance with SDCL § 13-27-3.1, shall participate in girls’ or women’s athletic events in South Dakota.

However, the South Dakota High School Activities Association said in a statement:

The SDHSAA is aware of the Executive Order issued yesterday by Governor Noem. As written, the Executive Order does not task the SDHSAA with anything. We would be happy to work with our member schools and/or the South Dakota Department of Education as appropriate on this matter. In the interim, we are focused on our Spring Sports and Fine Arts events and are thankful for the opportunity to allow kids to compete and perform throughout this unprecedented year.

This brings up the question, are these orders enforceable?

“It is not a law. But they are directing officials who are responsible to the governor to do this. Local school boards are not responsible to the governor, the Board of Regents by its constitutional authority isn’t directly reporting to the governor,” USD Associate Political Science Professor Michael Card said.

The South Dakota Board of Regents responded to the executive order in a statement saying:

We received the Governor’s executive orders when they were released publicly after the close of Veto Day on Monday. The Regents, Executive Director Maher, and staff are currently reviewing this order and understanding its impacts. We strive to comply with all applicable regulatory authority, while concurrently promoting and enhancing opportunities for our next generation of student-athletes. We expect more details on this topic to emerge during an upcoming legislative session, and we will continue to monitor the situation and make any necessary adjustments as we prepare for the next season of competitive sports activity.

Since the order is not a law, it’s still unclear what this will change at the collegiate and high school levels.

“In my 30 years of trying to study South Dakota law and government, the governor can convince the Board of Regents to do things but only the legislature can tell the Board of Regents to do something. With local school boards, the legislature can give them authority to act, or deny them authority to act; not the governor,” said Card.

So, where is the status of NCAA events currently sit? The collegiate sports governing body told Dakota News Now:

The NCAA continues to closely monitor state bills that impact transgender student-athlete participation. The NCAA believes in fair and respectful student-athlete participation at all levels of sport. The Association’s transgender student-athlete participation policy and other diversity policies are designed to facilitate and support inclusion. The NCAA believes diversity and inclusion improve the learning environment and it encourages its member colleges and universities to support the well-being of all student-athletes.

The Summit League offices also said they reached out to the NCAA for guidance on the matter.

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