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National Review

Kristi Noem’s Disappointing Capitulation

After the overwhelmingly conservative legislature in South Dakota passed a bill to protect female athletes from being forced to compete against transgender-identified males, Governor Kristi Noem inappropriately used her “style-and-form” veto (typically reserved for small matters of punctuation) to significantly diminish the bill’s ambit. The legislation would have upheld the biological definition of sex, ensuring that “any athletic team or sport” sponsored or sanctioned by a public school, school district, qualifying association, or institution of higher education would have to be “expressly designated” as either a male, female, or coed team. But after Noem’s changes, these protections are inapplicable at the collegiate level and meaningless anyway since she also removed a basic requirement for biological-sex verification. Appearing on Fox News to justify her decision to an indignant Tucker Carlson, Noem claimed she acted after consulting with legal scholars for “many, many months” and had been “working on this issue for years.” In other words: Trust me, there’s a great strategy here! Except that there isn’t. And whoever these legal scholars are, Noem would be advised to immediately dump them. Her veto, which made sweeping substantive changes rather than small stylistic ones, was a flagrant violation of her powers and sets an unwelcome precedent for future governors to abuse their powers in a similar way. Noem told Carlson that the “real issue” with the bill, as presented to her, was that “it wouldn’t solve the problem” of boys being allowed into girls’ sports, since it “would only allow the NCAA to bully South Dakota” and thus “prevent women from being able to participate in collegiate sports.” An alternative, she suggested, would be to pursue justice for female athletes and defeat the NCAA by building “a coalition.” This meant setting up a website, DefendTitleIXnow.com, which appeared after the controversy. As she faced a backlash among conservatives — including many who had previously praised her governorship — her spokesman blamed the reaction on conservative cancel culture. Anybody who thinks that a politician taking criticism for a public action is cancel culture clearly has not been paying attention to what that cancel-culture debate is all about. Though we can only speculate as to Noem’s motives, it would not be unfair to observe what this looks like. And that is a classic case of a politician motivated by immediate financial incentives (in this case, avoiding expensive lawsuits and potential boycotts) acting rashly on an issue she knows and cares little about, only to quickly realize that this was drastically out of step with her party and her base, and then frantically set about justifying her decision. There’s no doubt that the NCAA and corporations like Amazon engage in disgraceful bullying and blackmail to get their way on cultural issues like this one, but even on legal strategy, Noem is plainly wrong. While it’s true that a state will likely face lawsuits if it passes bills insisting on sex-exclusive sports, far from this being “a fight we can’t win,” as Noem so shortsightedly put it, litigation is unfortunately the best — in fact, probably the only — way out of the cage of transgender orthodoxy that is being constructed around us. Ever since the Supreme Court’s decision in Bostock v. Clayton County (which, recall, was confined to employment-discrimination law), followed by the Biden administration’s announcement of its uncompromising transgender agenda, there has been a general skittishness in insisting on the biological distinctions between males and females. The overriding concern among some seems to be: What if we get sued? Yet, here, conservative lawmakers ought to think of the big picture. The more lawsuits, the better, since sooner or later one of them will make its way back up to the Supreme Court, where, on the issue of women’s athletics, there is plenty of reason to hope that justice and sanity will prevail. Additionally, if the states fight back, they will also keep this issue in the court of public opinion, where they are also likely to win. There is a great symbolic need for such legislation. Indeed, what kind of message does Noem’s profession that we “can’t win” send to the likes of the young female Connecticut athletes, brave enough to put themselves out there in defense of similarly situated young women throughout the country? When one of these young women first complained about their state’s transgender sports policies, she was told by officials that though she had the right to participate, she did not have the right to win. Does Noem agree with that? Noem’s DefendTitleIXNow.com website and her strategy of eviscerating a protective bill is not an example of prudent leadership, but an attempt to pursue a middle road that simply does not exist. This is not difficult. Either boys should be allowed in girls’ sports, or they should not. If Governor Noem does not understand this — or worse, if she is unwilling to stand up for what’s right — then perhaps she should get out of the way for someone who will.