After saying earlier this month she was “excited” to sign a bill preventing transgender students from competing in same-gender sports, Noem effectively killed the legislation last week that had been passed by Republican majorities in the state House and Senate — citing concerns the bill as-is would invite lawsuits.
On Monday, however, she followed up by issuing two executive orders that implemented a ban on people assigned male on their original birth certificates from participating in women’s sports in public high schools and colleges. That predictably sparked opposition from trans rights advocates who say the orders are unconstitutional and discriminatory because they reference the supposed harms of the participation of “males” in women’s athletics — an echo of the transphobic claim that transgender women are not women.
But the move also prompted criticism from conservatives, who claim the executive orders are unenforceable and toothless.
Noem’s action is the latest in a growing trend among Republican-leaning states, where GOP politicians are embracing laws and executive orders to limit the participation of transgender students in school-sponsored sports. In recent weeks, Republican governors in Mississippi, Arkansas and Tennessee have all signed similar bills into law. There are dozens of other bills proposed by Republican lawmakers in states across the country. The subject has been discussed frequently in conservative media and featured prominently at the recent Conservative Political Action Conference.
All of that suggests Republicans have found a new way to drum up support in their base by challenging the rights of a minority group. It’s the latest front in their ongoing culture war, one that puts them in the familiar position of having to choose between social conservatives and the business community. It indicates the challenge Republicans have in balancing the cultural concerns of the party’s base with assembling a winning national coalition.
It also recalls the fight in 2016 over North Carolina’s so-called bathroom law that people at a government-run facility must use bathrooms and locker rooms that correspond to the sex on their birth certificate. In practice, the law meant that many transgender and nonbinary people were unable to use a restroom in government buildings, and felt unsafe to do so elsewhere in public. The law was enacted by Republican Gov. Pat McCrory and sparked an immediate backlash in the form of economic boycotts and saw the relocation of two major sporting events — the NBA All-Star Game and part of the NCAA basketball tournament — out of the state. McCrory lost his bid for reelection later that year.
Some social conservatives say that in rejecting the original bill, Noem bowed to pressure from the business community and the fear of lawsuits – a fear Noem herself cited in her statement at the time. Business groups like the Sioux Falls Greater Chamber of Commerce, for instance, were opposed to the original bill.
“The chamber’s long-term policy is to not pass laws that are discriminatory in nature that would affect our economy,” said Debra Owen, the Sioux Falls chamber’s public policy director.
And Noem herself expressed concern the bill as worded would put college programs out of compliance with collegiate athletics governing bodies. Six colleges and universities in South Dakota belong to the NCAA, the largest such governing body.
Social conservatives were not convinced.
“What we saw play out in South Dakota is the divide within the Republican party, and the divide is between the elites … and the voters,” said Terry Schilling, the executive director of the American Principles Project. “Noem ultimately capitulated to the chambers of commerce, the NCAA, and gave them what they’re wanting.”
Noem has insisted the executive orders are temporary and has called the legislature to hold a special session to draft a new bill that addresses her concerns.
“She’s still vocally supportive of the issue, and is still excited to sign a bill” achieving the same result, said Ian Fury, a spokesman for the governor.
Bubbling up at CPAC
Noem herself appeared poised to handle the competing constituencies effectively.
As the breakout star at CPAC, she touted her strident resistance to mask mandates and shutdown orders in South Dakota, even as her state has seen one of the highest per capita death rates from Covid-19, and governors across the country did otherwise during the pandemic. Unlike many potential presidential candidates who spoke there, Noem articulated a broad definition of what the party’s principles should be.
“We must more closely articulate to the American people that we are the only ones who respect them as human beings,” Noem said. “That we are the only ones who believe the American people have God-given rights. We are not here to tell you how to live your life, how to treat you like a child or criminal because you go to church or you defend yourself.”
But trans rights issues were already surfacing at CPAC. One panel focused on the perceived problems of allowing transgender girls to compete in girls’ school athletics, and multiple speakers criticized the Equality Act, passed by the House of Representatives earlier this month, which would amend the Civil Rights Act of 1964 to include protections against discrimination over sex, sexual orientation and gender identity.
And CPAC’s headline speaker, former President Donald Trump, asserted President Joe Biden was seeking to “destroy women’s sports.”
“We must protect the integrity of women’s sports. So important. Have to,” Trump said.
Focusing on children
Republicans have raised related topics in Congress, including at the recent confirmation hearing for Dr. Rachel Levine, Biden’s nominee for assistant health secretary and the first Senate-confirmed out transgender federal official. In a line of questioning criticized as transphobic, Republican Sen. Rand Paul of Kentucky equated life-affirming medical treatments for trans kids with “genital mutilation.”
Meanwhile, a number of social conservative groups have taken up the issue of fighting against transgender rights and are focusing on issues involving children. Among them is the Family Research Council, which has lobbied on behalf of what it calls a “biblical worldview” and in opposition to what it refers to as a “gender ideology” that promotes transgender rights.
“There are a number of manifestations of this worldview and this idea which we see as harmful, many see as harmful,” said Travis Weber, the vice president for policy and government affairs at the Family Research Council. “I think many are saying, look, this needs to be addressed in our communities, in our states.”
Weber says the FRC has identified more than 90 pieces of legislation in states across the country to limit participation of transgender women in girls’ school sports or to ban gender transition procedures for minors.
The Human Rights Campaign is also tracking bills and counts 48 anti-transgender sports bills in 26 states.
But advocates for transgender people say the actions of Republicans in state legislatures are alarming, and risks bringing real harm to the lives of kids who are already at risk.
“As trans people, we still very much live in a world where our existence is an act of resistance and our visibility is an act of bravery,” said Carrie Davis, the chief community officer at The Trevor Project, a suicide prevention and crisis intervention organization for LGBTQ youth.
“In the face of such constant, vitriolic rhetoric and a record number of anti-trans bills, it is crucial to show up and show support for transgender and nonbinary youth year-round,” she added.
While it’s unclear if the South Dakota legislature would actually take another look at the legislation in a special session this year, Noem continues to insist she’d support a ban under the right conditions.
“Governor Noem has been engaged in this very fight for years,” said Fury. “But we have to pursue this fight in a smart way, with the same type of strategic approach” used by activists who oppose abortion rights.
Schilling, however, said it’s disappointing Noem cast her lot with what he characterized as the business wing of the GOP.
“The business elites have been so entrenched in the Republican party forever,” Schilling said. “They don’t like these cultural fights.”
