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Transgender sports bill gains SD Senate committee's support

One year after vetoing a bill to ban transgender girls from playing sports, Gov. Kristi Noem's team defended a new proposal to allow girls to sue a school if they lose to a transgender girl in sports

FSA South Dakota capitol

PIERRE, S.D. — A bill that would allow girls to sue a school if they lose to a transgender girl in a sanctioned athletic event sailed 8-1 through committee on Friday, Jan. 14.

The decision immediately re-ignited a fight that lasted until the final days of the 2021 South Dakota legislative session.

In its first day, the Senate state affairs committee passed onto the full chamber Senate Bill 46.

The measure, called for by Gov. Kristi Noem, would set up a private cause of action in state law, under which a girl could sue for damages against a school, school board, activities association or college, if that girl experiences "direct or indirect harm" in competition against a transgender girl in an athletic event, from high school to collegiate intramurals.

Under the law, "biological sex" is defined as what appeared on an athlete's birth certificate "issued at or near the time of the athlete's birth."

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Noem's senior policy adviser Rachel Oglesby opened testimony for the bill, called "an act to protect fairness in women's sports," arguing that the potential for transgender girls to join school sports could present a threat to Title IX protections for girls.

"Girls deserve to compete on a level playing field," Oglesby said. "Similarly gifted and trained males will always have advantages over females."

Two other supporters of the bill stood up to argue for the measure, including a sports scientist from the University of Nebraska at Kearney, who made distinctions between boy and girl physical attributes, and an attorney representing Alliance Defending Freedom, a conservative legal fund that has filed a lawsuit in Connecticut over the sports fairness issue.

In opposition to the bill, South Dakota High School Activities Association Executive Director Dan Swartos reminded lawmakers that only one transgender athlete has been allowed to compete in a decade under current state policy.

"Passage of this bill would put us in a position of violating federal law or violating state law," Swartos said.

Before testimony, Sen. Mary Duvall, R-Pierre, offered a friendly amendment at the governor's request to require the attorney general to pick up the tab for defending any school from a lawsuit. The amendment was accepted.

But Wade Pogany, executive director of the Associated School Boards of South Dakota, said the amendment would not shield local schools against a federal investigation for gender discrimination from the Biden administration's Department of Education.

"We are still in harm's way," Pogany said.

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Senate Pro Tempore Lee Schoenbeck, R-Watertown, said cases of transgender performers outperforming biological females, such as transgender Penn State swimmer Lia Thomas, have compelled him to change his mind after opposing a similar measure last year.

"I don't think any of the issues on the topic are as clear as either side describes them," said Schoenbeck, who acknowledged a lawsuit was likely.

Sen. Troy Heinert, D-Mission, lamented the bill's approval in remarks before the vote, saying the bill delivers a clear message to transgender children in the state.

"We are going to say, 'you are not welcome,'" Heinert said.

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