Kristi Noem introducing women's sports bill limiting participation based on sex on birth certificate

FIRST ON FOX: Gov. Kristi Noem, R-S.D., plans to introduce legislation that would limit participation in female sports – both at the collegiate and K-12 levels -- based on the sex identified on an athlete's birth certificate, Fox News has learned.

"This is about fairness," Noem said in a statement provided to Fox News. "Every young woman deserves an equal playing field where she can achieve success, but common sense tells us that males have an unfair physical advantage over females in athletic competition. It is for those reasons that only girls should be competing in girls’ sports."

Expected Tuesday, the bill would make good on a promise Noem delivered when she controversially vetoed a similar bill from the state legislature. It also raises questions about her previous objection to the state legislature's restrictions on participation at the collegiate level.

Noem had argued that unlike elementary and secondary school regulations, collegiate restrictions would create an unworkable patchwork for athletic organizations that operate at the national level. Nonetheless, she signed an executive order at the time stating that the board of regents "should" restrict participation in women's sports – omitting the type of binding language she utilized in another order for the state's department of education.

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Both were designed as purported stopgap measures for the state until the next legislative session. South Dakota's legislature ultimately rejected the changes she proposed as part of her "style and form" veto, which lawmakers failed to override.

A draft bill obtained by Fox News showed Noem restricting athletic participation based on "biological sex," which it defines in reference to that which is identified on the student's birth certificate.  The new bill would go beyond Noem's executive order by mandating, rather than merely advocating, restrictions on collegiate athletic participation.

In a statement to Fox News, Noem spokesman Ian Fury indicated that other states' actions had made the collegiate measure more viable. Prior to Noem's veto, Idaho's governor had signed a similar ban. Since her veto, the governors of Florida, Alabama, West Virginia and other states have signed similar laws.

"Given HB 1217's problematic provisions, there was a higher risk of the entire bill being enjoined if South Dakota were to be sued by the NCAA. If that had happened, no girls in South Dakota would have been protected (at K-12 or collegiate level)," he said. "Now that other states have linked arms, as Governor Noem urged at the time, she is excited to protect girls' sports at both the K-12 and collegiate level, just as she's done with her executive orders."

The proposed bill could help heal a divide created by her veto, which critics portrayed as caving to entities like the National College Athletics Association (NCAA) and others that have taken a liberal stance on the issue.

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The Alliance Defending Freedom, a prominent conservative nonprofit, previously accused Noem of "gut[ting] protections for women athletes to placate [national] corporate interests."

"Gov. Noem proposed changes to House Bill 1217 that would eliminate protections for female college athletes outright and gut the ability for all women and girls to have recourse against unfair policies in women’s sports," said ADF attorney Kristen Waggoner in March.

Part of both Noem's new bill and the legislature's proposal include the ability of athletes to sue if they're adversely impacted by a violation of the restrictions on participation. They also offer educational institutions legal recourse if their compliance with the restrictions prompts retaliation from athletic organizations and other entities. 

In rejecting the legislature's bill, Noem had argued its language would create a "litigation hazard" for the state.

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"This legislation does not have the problematic provisions that were included in last year’s House Bill 1217," Noem said in a statement provided to Fox News on Monday. "Those flawed provisions would have led to endless litigation for our state, as well as for the families of young South Dakota athletes -- male and female alike."

More specifically, Noem's draft proposal excludes the state legislature's requirement that athletes provide a written statement verifying they haven't taken any performance-enhancing drugs – a controversial topic in the debate over gender and identity in sports. It also scraps what Noem described as an "onerous paperwork requirement" for parents to report on their child's gender.

Tuesday's legislation may provide policy assurances for state Republicans, although it's unclear whether it will resolve other questions raised in the aftermath of the governor's veto.

Noem continued facing conservative backlash in September when the National Review published a story questioning the influence of longtime advisor Matt McCaulley, who also served as a lobbyist for the state's largest employer, Sanford Health.

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On the day of her veto, Sanford announced it would direct $40 million toward a sports complex that would presumably face financial consequences if the NCAA retaliated. 

In September, a person with first-hand knowledge told Fox News: "It’s a well-known secret in South Dakota that Matt McCaulley has a seat at the Governor’s policy table while simultaneously representing the interests of Sanford Health as one of their key lobbyists."

"During the Women’s Sports debate, we clearly saw this conflict of interest when the Governor came out with a style-and-form veto on the same day that Sanford Health announced their $40M donation to expand a sports complex. McCaulley not only influenced Governor Noem’s decision to derail the women’s sports bill, but he also helped write the press release and worked on the messaging."

Noem had initially tweeted support for the bill but later said she wanted changes after conferring with "legal experts."

Fury told Fox News in September that the "buck stops" with the governor but didn't deny the allegation about McCaulley's influence on external communications. 

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"Nobody is making decisions for her," he said. "As an example, I promise you that the state's medical establishment, including doctors at Sanford Health, has not always loved the Governor’s freedom-first approach to the COVID pandemic … Governor Noem has been friends with Matt McCaulley since 2007. Their professional relationship dates back to the run-up to her original election to Congress in 2010. That timeline is important, because their working relationship far pre-dates his work for Sanford Health. All of Matt’s potential conflicts are declared, and he never lobbies the Governor on behalf of his clients."

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A Sanford spokesperson previously told Fox News: "Sanford Health did not engage in or take a position on HB 1217, the transgender women’s sports bill."  

They added: "Earlier this year and unrelated to the topic, Sanford Health announced a $40 million philanthropic gift from our benefactor, Denny Sanford, to promote community health and improve access to sports opportunities for all youth. This premier, highly versatile sports facility is an important investment in the community that will help families lead healthier and more active lifestyles and spur significant economic development."