South Dakota becomes first state to enact an anti-trans law in 2022

Late Thursday afternoon, South Dakota Gov. Kristi Noem (R) signed S.B. 46 into law, making it the first anti-trans law to be enacted this year. iIs Legislature on Tuesday passed S.B. 46, a bill intended to stop transgender girls and women from participating in “Any interscholastic, intercollegiate, intramural, or club athletic team, sport, or athletic event that is sponsored or sanctioned by an accredited school, school district, an activities association or organization, or an institution of higher education under the control of either the Board of Regents or the Board of Technical Education” and is “designated as being for females, women, or girls.”

S.B. 46 includes the following definition: “For purposes of this section, biological sex is either female or male as described by the sex listed on the athlete’s official birth certificate issued at or near the time of the athlete’s birth.”

Noem proposed the legislation in December. She said it excluded parts of a previous version that she vetoed last year due to “flawed” provisions that would have left the state vulnerable to lawsuits. On Jan. 12, her reelection campaign released a national advertisement championing the bill that claimed, “Noem has been protecting girls sports for years and never backed down.”

Later in the month, Noem chief of staff Mark Miller was criticized after he said during a hearing on the bill, “By putting it in law we are ensuring that what we’re seeing all over the country does not happen in South Dakota. It’s sort of like terrorism. You want to keep it over there, not let it get to here.” Asked about the comment by reporters, Noem said, “That’s not Mark’s heart” and confirmed that she’d sign the bill into law.

GOP lawmakers and anti-LGBTQ groups have turned their attention to regulating the lives of transgender people in recent years, particularly transgender youth. The American Principles Project, a conservative think tank, has been particularly active in pushing against the inclusion of transgender girls and women in school sports. In 2020, the group and its political action committee announced a $4 million advertising campaign “aimed at exposing the radicalism of Joe Biden, Kamala Harris and other Democratic candidates on transgender issues.”

In March 2020, Idaho became the first state to pass a transgender sports ban. A federal judge blocked the law that August after the American Civil Liberties Union brought a lawsuit challenging it. In 2021, a large number of similar bills were introduced in legislatures across the country. At least 69 transgender sports bans were introduced by May, according to the Human Rights Campaign, and by the end of the year 10 had been signed into law, with bans in Idaho and West Virginia currently blocked by temporary injunctions.

South Dakota lawmakers may pass more anti-trans bills this year. On Tuesday, the House passed H.B. 1005, a bill to stop transgender students from using the restrooms and locker rooms corresponding with their gender; it goes next to the Senate.

The Human Rights Campaign and the ACLU both condemned the passage of the South Dakota trans sports ban on Tuesday.

Jett Jonelis, an advocacy manager with the ACLU of South Dakota, stated, “Senate Bill 46 not only discriminates against trans women and girls in ways that compromise their health, social and emotional development, and safety, but also it violates federal constitutional guarantees of equal protection.”

They said of the state’s bathroom bill, “Transgender people, whether people know it or not, are already using the bathrooms and communal facilities they have a right to — and doing so without incident.”

Cathryn Oakley, the Human Rights Campaign’s state legislative director and senior counsel, said, “The eagerness with which Governor Kristi Noem and South Dakota legislators have worked to pass Senate Bill 46, legislation attacking transgender kids reveals their backwards priorities and that Noem’s national political aspirations override any sense of responsibility she has to fulfill her oath to protect South Dakotans.”

This piece has been updated to reflect the news that Gov. Kristi Noem signed the bill on Thursday, Feb. 3, 2022.

Published with permission of The American Independent Foundation.