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Transgender athlete ban cruises through South Dakota Senate on 26-7 vote

Senate Democrats were joined by five Republicans in their attempt to vote the bill down.

SD Senate Applause
Members of the South Dakota Senate applaud those visiting the Capitol in Pierre before they enter session on Wendesday, Jan. 19, 2022.
Hunter Dunteman / Mitchell Republic
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PIERRE — Lawmakers in South Dakota’s Senate easily passed 26-7 on Wednesday, Jan. 19, a bill banning transgender females from playing on sports teams for girls, women or females.

Titled “an act to protect fairness in women's sports,” Senate Bill 46 requires accredited schools in South Dakota, at all levels, to designate all athletic teams as females, women or girls; males, men or boys; or coeducational or mixed.

The bill specifically states only female students, based on their biological sex, may participate in any team, sport or athletic event that would be designated as for females, women or girls. There are no sections of the bill barring biological females from competing in sports designated opposite their sex.

The bill will be forwarded on to the House chamber for committee review in the coming days.

Sen. Jessica Castleberry, R-Rapid City, said SB 46 helps ensure a level playing field and doesn’t prevent anyone from participating.

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“In life or sports, the playing field has rarely been even for males versus females. Allowing males to compete in girls sports destroys fair competition,” Castleberry said. “Under SB 46, all children matter and everyone still has the opportunity to play — this bill doesn’t prohibit anyone from playing sports”

The origins of the bill in regard to the 2022 South Dakota Legislature stem from Gov. Kristi Noem’s state of the state address on Jan. 11, in which she claimed there is a “troubling movement” in society where schools and organizations are “changing the rules of the game in competition.”

Five days prior to Noem’s address to a joint session, the Senate State Affairs Committee had introduced the original bill at Noem’s request. A slightly amended version was passed on an 8-1 vote of the committee days later, changed only to broaden and clarify language of the bill.

Jessica Castleberry
Sen. Jessica Castleberry, R-Rapid City, speaks in favor of a bill to ban transgender women from women's sports on during Senate session on Wednesday, Jan. 19, 2022.
Hunter Dunteman / Mitchell Republic

On the Senate floor, proponents of the ban largely centered their arguments on the physiological and biological differences between biological men and women, harping on the idea that transgender women would have an unfair advantage in athletic competition.

However, the first main speech in opposition to the bill focused mainly on the legal aspect. Sen. Arthur Rusch, R-Vermillion, pointed out that the Legislature is going after a problem that doesn’t exist.

“The [South Dakota] High School Activities Association has a procedure in place where the transgender athlete has to petition them, and they review that on a case by case basis. My understanding is that in all the history that they’ve been doing that, they’ve only approved one person in South Dakota,” Rusch said. “So we have a situation here that a bill that is designed to resolve a problem that doesn't exist in South Dakota.”

Rusch pointed to court rulings against the states of Idaho and West Virginia regarding similar laws, noting that Idaho, specifically, has spent over $10 million in legal costs defending their law.

“Are we willing to spend money to solve problems that doesn’t exist in South Dakota,” Rusch asked. “Nobody knows — assuming if we lose that lawsuit — how broad will the court’s order be in that case. If in fact that order is that broad, it’s perhaps a possibility that female athletes will have less protection when we get done with this than they do now.”

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Reynold Nesiba
Sen. Reynold Nesiba, D-Sioux Falls, spoke his concerns of legal vulnerability surrounding a bill to ban transgender women from participating in women's sports on Wednesday, Jan. 19, 2022.
Hunter Dunteman

Sen. Tim Johns, R-Lead, echoed Rusch, citing a quote from U.S. Supreme Court Justice Neil Gorsuch’s opinion in Bostock v. Clayton Count, Georgia, from 2020 that reads “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Sen. Reynold Nesiba, D-Sioux Falls, rose to concur with the legal analysis of Rusch and Johns.

“I’m pleased to hear so many other good arguments about this from the lawyers in our midst making pretty clear that this is unconstitutional and a violation of Title IX,” Nesiba said.

Despite the legal cautions, the bill passed 26-7, with Sens. Red Dawn Foster, D-Pine Ridge; Jean Hunhoff, R-Yankton; Johns; Nesiba; V.J. Smith, R-Brookings; Rusch and David Wheeler, R-Huron voting no. None of the Senate Democrats voted in favor of the bill, as Sen. Troy Heinert, D-Mission, was excused.

Dunteman covers general and breaking news as well as crime in the Mitchell Republic's 17-county coverage area. He grew up in Harrisburg, and has lived in South Dakota for over 20 years. He joined the Mitchell Republic in June 2021 after earning his bachelor's degree in journalism from the University of Minnesota Duluth. He can be reached at HDunteman@MitchellRepublic.com, or on Twitter @HRDunt.
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