Governor Kristi Noem really has difficulty understanding the difference between style and substance. When she should be offering substantive and comprehensive policy action to deal with real crises, she coasts on slogans and rhinestone cowgirlery. Yet when she wants to abuse her veto power to make substantive changes in a controversial law passed by the Legislature, she pretends her illegal amendments are just “style and form.”
Yesterday Governor Kristi Noem asked the Legislature to rewrite House Bill 1217, the ban on transgender female athletes. The Governor is trying to have it both ways: she wants to sustain the scapegoating and bullying of transgender Americans that her party suddenly finds so popular, but she also wants to dodge the boycotts and lawsuits that will inevitably follow.
The Governor claims she is issuing a “style and form” veto, but her rewrite is no simple correction of verbs and conjunctions or other technical changes authorized by South Dakota Constitution Article 4 Section 4. No, the Governor’s rewrite leaps beyond the Constitutional limits of her veto authority and presents a bill substantively different in scope:
- The Governor removes requirements that athletes submit written statements verifying their age and stating that they are not taking and have not taken any performance-enhancing drugs, including anabolic steroids. (The Governor’s text in her news release is unclear, but she appears to redirect the requirements for participation to the birth certificate or affidavit parents must submit under SDCL 13-27-3.1 to send their kids to school.)
- The Governor says her revision limits the scope of the transgender-female sports ban to elementary and secondary schools (however, the language she pasted on her new release does not show the strikethrough of “or an institution of higher education under the control of the Board of Regents or the South Dakota Board of Technical Education”—I suppose that omission is a real style-and-form error).
- Her rewrite removes language authorizing entities sponsoring or sanctioning school sports to remove students submitting false information in those written statements from school activities for the entire school year.
- The Governor strikes all of the HB 1217 language that would allow students and schools to sue schools and activities associations for allowing transgender females to compete against them and their “real girls.”
South Dakota’s style and form veto is a form of the rare amendatory veto. We wrote it into our Constitution in 1972. But style and form does not include limiting the scope, reducing enforcement, and erasing causes for court action.
Noem uses other words without meaning in her style and form announcement. She claims her recommended revision will “protect women sports while also showing empathy for youths struggling with what they understand to be their gender identity.” But she keeps HB 1217’s core action of banning transgender females from female sports teams; where is the empathy in that action? Noem reaffirms her position that transgender females are liars out to do unjustice to real women—”But showing empathy does not mean a biologically-female-at birth woman should face an unbalanced playing field that effectively undermines the advances made by women and for women since the implementation of Title IX in 1972.” None of the changes the Governor proposes would make HB 1217 any kinder or more open to young transgender females playing sports; the changes only protect schools and organizations from bookkeeping and lawsuits and protect the state from losing money from the loss of big college sports events.
We probably can’t take Noem to court for abusing her style-and-form authority. When the Legislature convenes on Veto Day Monday, March 29, it is free to suspend its own rules and amend any vetoed bills or propose any new bills with any language it wants, the Governor’s or anyone else’s. But it is quizzical that a Governor who would dispatch lawyers to make strained arguments about the meaning of terms like “single-subject” and “revision” to defend the Constitution against the scourge of a voter-approved amendment would so wantonly disregard the language limiting her own Executive authority when she wants to rewrite a Legislatively approved bill to minimize her fat’s exposure to political fire.
But maybe she’s just carrying out another Lewandoski-smart-aleck critique of her opponents. She thinks transgender athletes are just “style and form” females, so why not tease them with a “style and form” veto that we all can see is something else?