HB 1217, the “Fairness in Women’s Sports Act,” has forced many people to become more familiar with parliamentary procedure than a group of FFA students. After initially passing both houses of the legislature, Governor Noem indicated her strong support for the bill via twitter. However, this eagerness was short-lived as she eventually sent the bill back to the legislature with a “style and form” veto, requesting the legislature amend the bill to exclude collegiate athletics. The legislature rejected her suggestion, and she refused to sign the bill, effectively vetoing the bill entirely.
But wait...there’s more! Governor Noem has issued two executive orders, purporting to satisfy the same goals as HB 1217. The orders separate collegiate athletics from K-12 athletics, reserving more assertive language for the K-12 realm. This distinction seemingly echoes Governor Noem’s previous hesitancy for the bill to apply to collegiate athletics.
The K-12 Executive Order states in part, “In South Dakota, only females, based on their biological sex, as reflected on their birth certificate or affidavit provided upon initial enrollment in accordance with SDCL 13-27-3.1, shall participate in any girls’ or women’s athletic event sanctioned by a public school, a school district[.]” The order requires the SDDOE to establish a policy consistent with the order, and the DOE has already followed up with a memorandum including a very short suggested policy on the issue.
Can Governor Noem do that? Requiring sports participation to be consistent with sex at birth would normally be the purview of the legislature. To enact such a requirement through executive order is unusual, to say the least. South Dakota has fairly strict constitutional requirements for the separation of powers, and the constitutional provision cited as reasoning for the order specifies it is the legislature’s [not the governor’s] responsibility to “establish and maintain a general and uniform system of public schools[.]” There’s little doubt opponents will bring these arguments when they seek to invalidate Governor Noem’s orders.
Bostock and Title IX. A common theme in the debate for HB 1217 and Governor Noem’s executive orders is the applicability of the Supreme Court’s decision last summer in Bostock v. Clayton County. In Bostock, the Supreme Court held an employer violated Title VII of the Civil Rights Act of 1964 by firing an employee for no other reason than being transgender. Importantly, the Court decided this case on the basis of Title VII, not Title IX. Proponents of Governor Noem’s position argue Bostock is limited to Title VII and applies only to employees, not students. Although the Supreme Court explicitly said its Bostock opinion was limited to Title VII cases involving employees, other courts have already applied Bostock in the Title IX context to students. The Fourth Circuit applied Bostock in the context of bathroom access for transgender individuals in Grimm v. Gloucester Cty. Sch. Bd., holding a school’s policy of requiring bathroom usage to align with biological sex violated Title IX. The Eleventh Circuit held similarly in Adams v. Sch. Bd. No appellate court in the last several years has upheld board policies denying transgender students protection under Title IX and the U.S. Constitution’s Equal Protection Clause.
What Should Schools Do Now? And so, as they say, the battle lines have been drawn between the clear trend in the courts (and the position of the Biden administration) and Governor Noem’s executive orders., Despite litigation across the country, the Eighth Circuit, which oversees South Dakota, has not explicitly ruled on the issue. It is possible the Eighth Circuit could disagree with its sister courts, which would almost certainly result in a review by the Supreme Court. That process could take years, when in some cases schools will have to make decisions within hours or minutes.
Governor Noem’s executive order is in effect now and the Department of Education has already issued its sample policy. The orders will almost certainly be challenged in federal court, but that will be little help when these issues are being pressed by a parent (on either side) in your office. Our advice for years has been consistent: no matter what is ultimately decided, Title IX’s express wording is clear and prohibits discrimination “on the basis of sex.” Enacting policies such as the Department of Education’s may expose schools to possible federal litigation, even if not liability. To be clear, we know they are simply following the order. However, in our opinion this is a school board decision and should weigh all of the legal, practical, and political considerations. Your district should have a conversation with your school’s legal counsel regarding how best to approach this complicated and politically charged issue.
Call Tyler, Bobby, or Karen if you have any questions!