South Dakota Gov. Kristi Noem has found herself mired in a controversy involving one of the chief cultural battles going on right now. She vetoed a bill barring biological men from competing against and dominating women in sports. That we are even needing to have states pass these laws says nothing good about the intellectual heft of our society, but I digress.
Noem had her reasons for booting the bill, and one of RedState’s writers covered the legal ramifications in detail. Of course, the issues of technicality and messaging are two different things. You can be arguably right on the merits and still get shellacked if you can’t articulate your position properly or make mistakes in how you explain yourself.
In an attempt to smooth things over, Noem recently wrote an op-ed for National Review offering her defense. To be honest, though, I don’t think it really helped matters.
That is why we need to get this right. Since November, my team and I have worked to find the best way to defend women’s sports effectively — not just to feel good, but to do good. We have to be able to win in court.
It is for that reason that I asked the South Dakota state legislature to make revisions to HB 1217. As passed, this bill was a trial lawyer’s dream. It would have immediately been enjoined had I signed it into law, meaning that no girls in South Dakota would have been protected.
That’s really the only substantive mention of HB 1217 in her op-ed. The rest is her bragging about other things she’s done. And while she deserves credit for those things, they hold little relevance in any discussion of this issue.
Here’s the problem, and what has been the problem since the beginning for the South Dakotan governor. Noem keeps citing grave legal challenges that forced her to veto the bill, yet she keeps not listing what those are. No doubt, articles such as the one I linked above from RedState have made a solid defense of her actions, but she’s been a terrible messenger on this. For example, at one point she was claiming the NCAA would pull out of South Dakota if she signed the bill. That’s never been a realistic possibility. The NCAA might forgo holding a tournament there, but they’d never stop women at the state’s universities from competing.
How do I know? Because Arkansas has almost the same law already in effect, and that hasn’t happened. As David Harsanyi writes, Noem has been her own worst enemy on this.
None of these accomplishments, however, explain her veto. And the fundamental problem with her new piece — indeed, her entire case for vetoing the “Women’s Fairness in Sports” bill — is that she has yet to lay out the alleged legal hurdles that would constrain her from signing it. Other states, including Arkansas, have very similar laws. Noem won’t even admit that she vetoed the bill.
Even if we concede that lawsuits would be in the offing, so what? At worst, South Dakota would be back where it started after a very public debate on an issue Noem claims is vitally important to her. At best, Title IX protections are restored. It’s tough to read Noem’s insincere rationalization a week after writing about someone like Jack Phillips, who stood up to an entire state to protect his religious liberty even after most people told him he would lose.
Who are these legal experts she’s been talking to? Naming them and allowing them to speak for themselves would greatly help Noem’s case. Perhaps they could lay out the specific challenges they expect to have to fight. But she hasn’t done that, and the perception is that she caved to threats from the business community, including from companies like Amazon. That kind of thing is kryptonite to conservatives.
With that said, I think it’s completely unfair to cast Noem aside completely as a political figure. She’s still a great governor, and if purity on every single issue and decision was required, Donald Trump would have never been president. A politician that will agree with you on every single issue hasn’t been born yet. Anyone looking to trash Noem should take heed of that, take a breath, and realize there’s still room to work here. Perhaps she and the legislature can get this worked out? We’ll have to see.
Yet, Noem’s unforced errors are concerning, and the people around her and advising her aren’t doing a very good job. In order to veto that bill, they needed to have a far better defense ready to roll out. Instead, they seemed to get caught flat-footed. Perhaps this will be a hard lesson learned and observed in the future because I really, really like Noem as a future star of the party.