A quick read of Governor Kristi Noem’s transgender-bullying executive orders—one illegal, one powerless—told me that Noem’s decrees, like her entire gubernatoriate, is about her goober-notoreity, boosting her attention and poll numbers among the far right, than about effecting any legitimate policy change.
University of South Dakota political science professor reads Executive Orders 2021-05 (pretending to ban transgender female from K-12 female sports teams) and 2021-06 (urging the Board of Regents to do the same) and gets a similar impression about the orders’ flaccidity:
“So it’s not clear that the Secretary of Education can do much in that respect, except on a year by year basis, the school board can make that delegation, but it’s not clear the Secretary of Education can do that, again I’m not an attorney but that’s what the statute seems to read,” said Card.
The second executive order comes down to this. Can the Governor tell the board of regents what to do? Card says the Board of Regents was created by the constitution, subject to limitations placed on them by the legislature.
“It’s not clear the governor has a great amount of authority over the South Dakota Board of Regents to direct them to do much of anything,” said Card [Tom Hanson, “Noem’s Executive Orders on Transgender Athletes May Lack Teeth,” KELO-TV, 2021.03.30].
As I noted last night, South Dakota Codified Law Chapter 13-36 recognizes that local school boards have authority over their interscholastic activities and can vest that authority in the South Dakota High School Activities Association and similar organizations that follow the conditions of that chapter. Governor Noem, Corey Lewandowski, and their 2024 campaign brain trust are no such law-abiding organization. As for college sports, South Dakota Constitution Article 14 Section 3 places our ball-playing universities under the control of the Board of Regents. Article 14 Section 3 says the Governor can appoint those Regents, but she can’t boss them. (That’s why she said should, not shall, to the Regents in EO 2016-06.) Nor can the Governor (SDCL 13-49-3) fire the Regents and replace them with toady bigots unless (SDCL 3-17-1) she can give proof that the Regents have committed “crimes, misconduct, or malfeasance in office or… drunkenness or gross incompetency.” And no, refusing to follow bogus executive orders is neither gross nor incompetent.
Now we might cut the Governor some slack for bending the law amidst an emergency. But as Dr. Card points out, Noem didn’t invoke an emergency:
Executive orders usually carry the most weight when they are issued during an emergency. But Card says because there are no current cases involving transgender student-athletes, an emergency declaration isn’t warranted [Hanson, 2021.03.30].
I’d love to see Noem’s orders tested in court. But our ever-cautious schools will likely just let them ride. The K-12 schools know there’s no emergency—as the press keeps reminding us, there’s been only one transgender girl in South Dakota girls’ sports in the last eight years—and the Regents know Noem order isn’t enforceable, so there’s no pressing practical need for any school district or university to step out in front of Noem’s hurtling publicity bus.
Still, I faintly recall a certain school board member from Sioux Falls who expressed clear disgust at Noem’s clueless meddling in school boards’ proper authority. Maybe that school board member will talk to her colleagues and her friends and convince them it’s time to put the Governor in her place… which ultimately is back home at the fake ranch in Hamlin County.