Why the Complaint About Gov. Noem Excluding College Athletics Is Baseless

(AP Photo/Matt Slocum, File)

The decision by South Dakota Gov. Kristi Noem to not sign Bill 1217,  “An Act to Promote Continued Fairness in Women’s Sports,” is being volleyed back and forth across conservative media and commentators such as myself.

One issue that is repeatedly raised as “evidence” that she has “caved-in” to corporate or organizational interests — specifically to the NCAA — without a fight by eliminating protection for female college athletes.

The argument seems to be that by excluding college athletics from the scope of the bill, she has left female college athletes in South Dakota exposed to the threat of having to compete against biological males participating in college sports.

This is red herring — as was noted by a federal judge in Idaho, appointed by Pres. Trump, who issued an injunction prohibiting enforcement of Idaho’s statute — the only thing Bill 1217 does as written would be to prevent transgender women from being part of biological women’s teams of South Dakota colleges and universities.  To the extent the NCAA chooses to allow transgender women to participate in NCAA events, the biological women on South Dakota college athletic teams would still be faced with having to compete against transgender women on teams from colleges outside South Dakota. To the extent that the legislative justification for Bill 1217 is to protect biological females from having to compete against transgender women, it does not accomplish that goal — they still have to compete against teams from outside South Dakota that could be allowed to have transgender female participants.

The NCAA has not yet made itself a potential target of litigation because it has not adopted any policy explicitly allowing the participation of transgender women in NCAA sanctioned competitions for women’s teams.  It has allowed the decision on that subject to remain at the individual institutions.  The NCAA has only adopted a policy of “inclusivity”, which reads as follows:

As a core value, the NCAA believes in and is committed to diversity, inclusion and gender equity among its student-athletes, coaches and administrators. We seek to establish and maintain an inclusive culture that fosters equitable participation for student-athletes and career opportunities for coaches and administrators from diverse backgrounds. Diversity and inclusion improve the learning environment for all student-athletes and enhance excellence within the Association.

The Office of Inclusion will provide or enable programming and education, which sustains foundations of a diverse and inclusive culture across dimensions of diversity including, but not limited to age, race, sex, national origin, class, creed, educational background, disability, gender expression, geographical location, income, marital status, parental status, sexual orientation and work experiences.

The only reference in that word salad to transgender athletes is in the second paragraph where the term “gender expression” is included.  But as to that term, the NCAA is only committing itself to “provide or enable programming and education, which sustains the foundations of diverse and inclusive culture across dimensions of diversity…”

Got that?

More recently the NCAA has adopted a policy on transgender athlete participation — but it is a “policy” about how schools’ “policies” should be intended and designed.

Policies governing the participation of transgender student-athletes should be informed by the following principles, and be included in the institution’s transgender student-athlete policy statement:
1. Participation in intercollegiate athletics is a valuable part of the education experience for all students.
2. Transgender student-athletes should have equal opportunity to participate in sports.
3. The integrity of women’s sports should be preserved.
4. Policies governing sports should be based on sound medical knowledge and scientific validity.
5. Policies governing sports should be objective, workable, and practicable; they should also be written, available and equitably enforced.
6. Policies governing the participation of transgender students in sports should be fair in light of the tremendous variation among individuals in strength, size, musculature, and ability.
7. The legitimate privacy interests of all student-athletes should be protected.
8. The medical privacy of transgender students should be preserved.
9. Athletics administrators, staff, parents of athletes, and student-athletes should have access to sound and effective educational resources and training related to the participation of transgender and gender-variant students in athletics.
10. Policies governing the participation of transgender students in athletics should comply with state and federal laws protecting students from discrimination based on sex, disability, and gender identity and expression.

Policy Recommendations for Collegiate Athletics

Policy development governing the inclusion of transgender student-athletes is an emerging endeavor.

As new research on the participation of transgender athletes and the physiological effects of gender transition on athletic performance becomes available, policies may need to be re-evaluated to ensure that they reflect the most current research-based information.

From all of that, you can draw this conclusion — the NCAA is happy to leave actual policy formulation to the member colleges and universities.  However, the NCAA will lecture them on how they should develop those policies.

Most importantly, any policy adopted by a member institution must not violate state and federal laws prohibiting discrimination based on “gender identity.”  The NCAA rests comfortably knowing that the institutions who are members are among the creme de la creme of wokedom — they don’t need to be told what to do on the subject, they know what to do.

But when the unwoke officeholders in red-state governments force colleges and universities to go in a different direction, guess who gets to decide if the policy forced on the member institution(s) violates a federal law barring discrimination?  Correct — the NCAA.  This leads to things like this:

Now North Carolina is losing the NCAA tournament. The NCAA announced on Monday that the seven championships scheduled in the state during this academic year, including NCAA men’s basketball tournament games in Greensboro, would be relocated because of House Bill 2, better known as HB2.

HB2 was a North Carolina law that saying that on state property transgender people had to use the bathroom that corresponded with the gender on their birth certificate. It had nothing to do with college athletics, but the NCAA made North Carolina communities and college athletic teams pay the price for passage of the statute. One analysis performed the following year estimated that the state lost $37 million in anticipated revenue because the events were moved.

Here is what the NCAA said publicly in announcing the action taken against North Carolina:

“North Carolina laws invalidate any local law that treats sexual orientation as a protected class or has a purpose to prevent discrimination against lesbian, gay, bisexual or transgender individuals,”

“North Carolina has the only statewide law that makes it unlawful to use a restroom different from the gender on one’s birth certificate, regardless of gender identity,”

“North Carolina law provides legal protections for government officials to refuse services to the LGBT community,”

“Five states plus numerous cities prohibit travel to North Carolina for public employees and representatives of public institutions, which could include student athletes and campus athletics staff,” the NCAA wrote. “These states are New York, Minnesota, Washington, Vermont and Connecticut.”

California joined the list later.

A year after HB2 passed, North Carolina cried “Uncle” and partially repealed the law.  Miraculously, the NCAA scheduled championship events for locations in North Carolina.

Gov. Noem’s point is that there are better ways to deal with the stick the NCAA uses to punish transgender transgressors — an alternative to revealing your bare ass and doing your best Chip Diller impersonation:

Maybe what she has in mind is a multi-state effort as a show of force to the powers-that-be in the NCAA, calling attention to the fact that some of the unwoke “red state” governments have meaningful control over such valuable institutions — valuable to the NCAA — as Texas, Florida, Alabama, Georgia, Louisiana, Tennessee, South Carolina, Ohio, Nebraska, and a few more. Maybe attempt to do something along the lines of what I described here.

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