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USD Prof: Noem Can’t Force Schools to Bully Transgender Athletes

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.

20 Comments

  1. Donald Pay 2021-03-30

    I’m not sure that there is any way to force districts to adopt such a policy. If it isn’t in state law, districts have pretty wide authority to set district policy. However, in terms of activities that require as statewide perspective taking into consideration small districts and large district needs, there are associations which set policies, and the districts, coaches, etc. generally don’t deviate too far from those. I’m sure debate coaches follow the rules as set down by the National Forensic League and the South Dakota affiliate.

    I’ve said before that girls wrestle on boys squads in Wisconsin. Since there has not been enough girls interested in wrestling, they wrestle on the boys squad. Now it appears more girls are participating in the larger schools that the WIAA will add a girls state tourney in 2021-2022. This has flummoxed some boys wrestling coaches since they count on the girls to fill the lower weight classes, where they tend to beat the “little boys.”

  2. grudznick 2021-03-30

    Flummoxed, indeed, Mr. Pay. Here in South Dakota where we are more progressive, there is a season and sanctioned high school activity for Girls Wrestling. The state tournament was held right here in Rapid City, and I saw a team at breakfast one day.

    https://www.sdhsaa.com/Athletics/Girls-Sports/Wrestling

  3. Mark Anderson 2021-03-30

    It’s easy to see the trumpies wailing against the cultural war they lost decades ago. It’s just so sad to see isn’t it?

  4. DaveFN 2021-03-30

    Typical South Dakota. Those at the upper level reserve all decision making to themselves alone and operate with top-down fiat. This is characteristic of innumerable State organizations. We might go further and question why the SDBOR is appointed by the governor in the first place, other than the fact they are thereby beholden to the governor. Nebraska doesn’t operate according to such a model, nor do several other states.

  5. DaveFN 2021-03-30

    As Cory makes clear, there are no current cases, hence the SDBOR can save themselves and salve any conscience they may have. Nonetheless, their appointment by the governor implies a presumption of loyalty, at least in our narrow-minded state where loyalty is the implicit assumption if anyone is to be appointed by anyone to anything whatsoever.

  6. Mike Livingston 2021-03-30

    Granted the gubner does not have the intellectual wherewithal to make a case of any sort against anyone, she seems to pride herself on appearing clueless.

  7. V 2021-03-31

    This is a classic case of bullying with the pretense of being the hero. Noem is going to save girl’s sports through a primitive pecking order like chickens use and of course roosters like Trump.

    When they have no substance, no idea what they are doing, the Noems and the Trumps tear people down. Then, their base has a common enemy so they can rally around the “ol fascism flag” together.

    Policy, law, civility? The scary thing is, Noem has weapons. She can’t do anything else but she can ride a horse while holding a flag and shoot a pistol/shot gun and dang the men in my town just love her to pieces. They are blaming the state legislature for the embarrassing flip flop back and forth with this issue and most think she should have included men’s sports as well because they don’t like girls beating their sons/grandsons in wrestling.

  8. Cory Allen Heidelberger Post author | 2021-03-31

    Among the problems here, V, is that the Governor may know that her orders can have no policy effect and does not care. The purpose of the orders is not to change high school policy but to keep Kristi in the news, keep the attention of the donors and the primary voters, and bully transgender South Dakotans and their allies into leaving the state.

  9. Cory Allen Heidelberger Post author | 2021-03-31

    Rep. Taffy Howard (R-33/Rapid City) agrees that Noem’s orders don’t do anything but expose her fakery:

    Rep. Taffy Howard, R-Rapid City, said the pair of executive orders are “absolutely ridiculous” and that Noem is more interested in empty words than actions. Howard, who was a co-sponsor of the bill, said 1217 was a good bill vetted by attorneys across the nation, and the executive orders are worthless as there is no enforcement mechanism. Howard pointed out that South Dakotans can update their birth certificate to reflect their gender identity, so it is useless to require student athletes to participate in sports according to their birth certificate.

    “It’s all a smoke screen to make people think she’s doing something when she’s really not doing anything. I can’t express my frustration enough,” Howard told the Journal.

    Howard said that all of Noem’s initiatives thus far have been meaningless, which is why the House rejected her style and form veto of 1217 on Monday. The executive orders are more of the same, she said, and will ultimately do nothing.

    “I’m tired of politicians who claim to be conservative with their words but don’t follow through with their actions. The majority of people are conservative in this state. When we elect politicians we expect them to follow through,” Howard said [Abby Wargo, Lawmakers, Advocates Disappointed by Noem’s Executive Orders on Women’s Sports,” Rapid City Journal, 2021.03.30].

    Didn’t Noem say something about knowing she’s over the target because she’s taking flak? Does that include when she’s taking flak from her own party?

  10. bearcreekbat 2021-03-31

    In another thread a commenter using the name “Legal Beagle” cited specific regulations (“SD AR 44:09:05:02 and 44:09:05:09”) claiming they provided a method to change gender on a birth certificate, and that such changes had been ordered “multiple times” by SD courts.

    When I checked the cited regulations, it appeared for any changes after one year A.R.S.D. 44:09:05:02 required evidence of “incorrect data as it is listed on the certificate” and that A.R.S.D. 44:09:05:03 required “documentary evidence” of the incorrect data on the certificate sought to be changed or updated; specifically, documentary evidence:

    such as census, hospital, church, and school records, must be in the form of the original record, a certified copy, an authenticated copy, or a signed statement from the custodian of the record or document. An affidavit of personal knowledge may not be used to amend a vital record. (emphasis added)

    Since this looked like quite a hurdle for changing a gender declaration on an original birrth certificate I asked Legal Beagle what sort of documentary evidence the courts accepted, but received no response from the commenter or anyone else.

    Now, Cory quotes Representative Howard as saying: “South Dakotans can update their birth certificate to reflect their gender identity.” Obviously, I must be overlooking a different set of laws, or some particular “documentary evidence” that might satisfy the agency or a Judge that it meets the requirements of the regulations. Does Cory or anyone else have some reference to a different regulation or statute, or the particular “documentary evidence” to support the statements of Legal Beagle or Cory’s quote of Howard’s statement?

  11. mike from iowa 2021-03-31

    South Dakota allows transgender people to change their legal gender. In order to update a birth certificate, the applicant must submit to the Office of Vital Records a copy of a court order changing their legal name and gender, a copy of the photo ID, an “Application for Birth Record” as well as pay the required fee.

    Unless I totally missed the point, this does not seem as onerous as obtaining an abortion unless propaganda fed, Fake Noize talking points spewing clerks complain about made up religious beliefs and refuse to cooperate.

  12. bearcreekbat 2021-03-31

    Thanks mfi. Have you found anything that might identify the “documentary evidence” that SD courts might accept, as required by A.R.S.D. 44:09:05:03? Or perhaps this regulation only applies to agency and is not enforced by SD courts since it is a regulation rather than a statute? A bill to prevent changes to gender was apparently introduced this the SD legislature this year but failed.

    https://rapidcityjournal.com/news/local/state-and-regional/senate-committee-rejects-bill-to-prohibit-trans-people-from-changing-gender-on-birth-certificates/article_6877bd90-92b0-5330-963e-585b75c58285.html

  13. mike from iowa 2021-03-31

    There are a few rules basically repeating the same documentary evidence allowable, but nothing I have seen says anything about court acceptance. Department of Health has somewhat different evidentiary standards.

    Maybe this is handled out if court..

  14. mike from iowa 2021-03-31

    Way off topic, everybody’s favorite Watergate bumbling burglar, George Gordon Battle Liddy’s reservations to the Watergate Hotel in Hell was punched today.

    Liddy was not the least humbled by having Jimmy Carter get him out of prison. Glad James Earl Carter outlived this stain on America’s history.

  15. grudznick 2021-03-31

    You do kind of have to agree that participation trophies are a feel-good libbie joke for activities like bowling, yearbook and debate.

  16. o 2021-03-31

    Grudznick, I have a “feel-good, libbie” trophy or two for “joke activity debate” that I will put up against any of your REAL awarded accomplishments.

  17. o 2021-03-31

    Lawrence, thanks for the link. Talk about something that ought to have been vetoed for forma and style.

  18. Jenny 2021-04-01

    If the Pubs could just realizethat the far majority of female sports athletes welcome the competition of transgenders in sports with them. Everyone gets a workout then, but no, crazed pubs always have to make it difficult with everything.
    The Racism and exclusion that dominates todays Republican Party will continue to be a major problem and they will continue to lose voters in the coming years. Exclusion isn’t how you win people over to your side.
    Hey pubs I’ll tell you a secret – transgenders are beautiful people inside and out. The LGBT is full of wonderful, sensitive, creative, intelligent and charming men and women that just want to live their lives. I am proud to be supporters of them and will continue to have their backs along with millions of other LGBT supporting Minnesotans.

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