The South Dakota legislature passed a bill that would ban some women from sports, and the governor claimed it honored International Women’s Day yesterday.
The state’s senate passed H.B. 1217 – which would ban transgender girls and women from school and college sports – yesterday with a 20-15 vote. There are only three Democrats in the chamber.
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The bill passed the state’s house earlier this year and is now headed to the governor’s desk. Gov. Kristi Noem (R) has already said publicly that she will sign the bill.
“In South Dakota, we’re celebrating #InternationalWomensDay by defending women’s sports!” she tweeted. “I’m excited to sign this bill very soon.”
— Governor Kristi Noem (@govkristinoem) March 8, 2021
The bill is part of an “astute political strategy intended to erode the rights of trans people,” the Transformation Project Advocacy Network’s Susan Williams told them.
“If we actually wanted to help women and girls in athletics we’d be demanding equal prioritization of girls and boys sports, safeguarding against assaults perpetrated against high profile athletes and children by trusted adults, and demanding pay equity for coaches of women’s teams,” she said.
“We’re not doing any of that.”
South Dakota became the second state this year where the state legislature passed an anti-transgender bill. Mississippi’s passed a similar bill to exclude transgender girls and women from school sports last week.
While dozens of states consider these bills that attack transgender girls in sports or seek to ban gender-affirming health care for minors – including puberty blockers, which need to be taken at the onset of puberty – the Biden administration has already condemned them as illegal.
Yesterday, White House Press Secretary Jen Psaki was asked about Biden’s views on the bills, and she brought up Biden’s executive order that he signed on his first day in office that said that federal civil rights legislation that bans discrimination on the basis of sex also bans anti-LGBTQ discrimination.
“The anti-discrimination executive order that the president signed is focused on children being able to learn without worrying about whether they will be discriminated against,” she said, “and this means not being denied access to the restroom, the locker room, or school sports.”
Biden’s executive order used the legal reasoning that the Supreme Court adopted in the majority opinion in Bostock v. Clayton Co., which said that Title VII’s ban on job discrimination “based on sex” means that anti-LGBTQ discrimination is banned since it’s impossible to discriminate against LGBTQ people without taking their sex into account.
Biden’s order extends this reasoning to other areas of discrimination covered by federal law, including Title IX’s protections in education.
Since state legislatures cannot overturn federal civil rights protections, this means that states like South Dakota, Mississippi, and, last year, Idaho, that attempt to ban transgender girls from school sports are in violation of federal law.
But that’s a matter that will have to be settled in federal court, where many judges were appointed by Donald Trump. Even if the courts ultimately rule in favor of transgender youth, it could take years of struggle to get such a ruling.
While Gov. Noem and many proponents of these bills claim that they protect girls and women in sports, they don’t do anything to address the actual barriers that girls face in school sports. According to the Women’s Sports Foundation, 23% more boys than girls participated in school sports in 2018, and 87% of NCAA colleges and universities offer disproportionately more athletic opportunities to men than women.
The barriers cited by the Women’s Sports Foundation include bullying (that girls are mocked for playing sports), unsupportive families, abusive coaching, little training for school staff on gender equality, and a lack of access to mental and physical health care access.
Transgender girls participating in sports was not mentioned in the organization’s report as a reason girls don’t want to do sports.