Noem's lawyer compares transgender sports participation to 'terrorism'

Senate Bill 46 sailed 8-2 through House State Affairs on Wednesday. The measure would authorize lawsuits against school, university officials over transgender girls and women in sports.

Mark Miller has served as Gov. Kristi Noem's interim chief of staff since November.
Courtesy of South Dakota Governor's Office

PIERRE, S.D. — Gov. Kristi Noem's interim chief of staff on Wednesday, Jan. 26, likened banning transgender girls from participating in girls' sports to thwarting terrorism.

Senate Bill 46, which sailed through the full Senate last week, was passed Wednesday by a powerful House committee after a heated debate. The bill would give the legal green-light to sue school officials over allowing transgender girls and women to participate on all-female teams.

Following public testimony in the House State Affairs Committee on Wednesday, Mark Miller, interim chief of staff and legal counsel to Noem, told lawmakers that even though the state has seen only one transgender girl perform during the last decade, the goal of the measure is preventative.

"It's sort of like terrorism," Miller said. "You see it over there, and don't want it to get to here."
The committee proceeded — over "no" votes from the two Democrats — to approve the controversial measure 8-2.

Prior to the vote, House Minority Leader Jamie Smith , D-Sioux Falls, called out Miller's contentious comparisons and said, "It's 'Groundhog's Day' at the Capitol," invoking past fights over the last half-decade in Pierre over transgender rights in school.


Legal experts from both camps lined up myriad cases — from the U.S. Supreme Court's decision to recognize transgender rights in employment law cases in 2020 to a federal circuit court decision in West Virginia — suggesting legal support for their side.

Miller pointed to University of Pennsylvania swimmer Lia Thomas , who is transgender, in suggesting that transgender girls may possess athletic advantages in girls' sports. He said it would violate women's rights as codified in Title IX if transgender athlete sare allowed to fully participate in competitive events.

Other attorneys differed, with former Attorney General Roger Tellinghuisen, now a lobbyist for the Human Rights Campaign, assuring the committee that SB 46 , as written, would violate federal civil rights law.

One current high-schooler argued Wednesday in favor of greater inclusivity in team sports.

"I welcome trans girls on my team because I know just like me, trans girls deserve the opportunity to play sports and be recognized and respected for who they are," said Breanna Brings Plenty from Little Wound, South Dakota.

Hoera Kingi, who is transgender, and a former high school cheerleader from Rapid City, also testified.

"Not being able to participate would've been devastating to me," Kingi said. "It would've stopped me from meeting my favorite people and [making] my most cherished memories."

But the eight Republicans on the committee appeared not to be swayed by personal remarks, and instead were unified on an issue that has galvanized the political base over the last year — one that failed to reach the finish line last year after a style-and-form veto from Noem.


After Wade Pogany, executive director of the South Dakota School Board Association, told the committee that his members had voted in favor of supporting the current state athletic association's policy, both Reps. Kevin Jensen , R-Canton, and Tim Goodwin , R-Rapid City, pushed back on his suggestion of a unified base among schools.

"Are you telling us the school boards in every school is asking you to support the activities association?"

"How many are represented?" Jensen asked.

Pogany replied that an "overwhelming" number of the 75 to 80 schools who voted on the policy supported upholding it.

The bill, which was brought by Noem, now moves onto the full chamber in the House. If approved, it'd go to the governor's desk for her signature.

Christopher Vondracek covers South Dakota news for Forum News Service. Email him at or follow him on Twitter at @ChrisVondracek.
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