2021 Capitol-ism March 8 - HB 1217

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South Dakota Chamber Of Commerce - Capitol-ism E-Newsletter

March 8, 2021

Transgender Bill Still Lives

Smoked Out of Committee – Key Vote Today

As the final week of the legislative session begins, there is one controversy that has grown to a showdown on the senate floor later today.  HB 1217 that prohibits transgender students from competing on sports team with the gender they identify with rather than the gender that was recorded on their birth certificate.



  • HB 1217 Banning Transgender Students in School Sports
  • HJR 5003 June 2022 Primary Vote
  • Capitol Week Podcast 


Banning Transgender Students in School Sports

HB 1217 - Promote continued fairness in women's sports. Milstead (R-Hartford)

As the final week of the legislative session begins, there is one controversy that has grown to a showdown on the Senate floor later today.  HB 1217 prohibits transgender students from competing on sports teams with the gender they identify with rather than the gender that was recorded on their birth certificate.

No Solution.  Proponents have accurately pointed out that male athletes have much higher levels of testosterone and muscle mass and have a competitive advantage over female athletes in direct competition.  Having identified testosterone as the equivalent of a performance enhancing drug, the bill does nothing to address that as a problem.  Unlike the NCAA that requires an athlete to have taken testosterone suppressing drugs for two years or require that testosterone be measured, this bill simply bans transgender students from competition going back to their actual birth.

A Single Digit Issue.  To be absolutely clear, this issue is extremely rare in South Dakota.  The South Dakota High School Activity Association said during a hearing on HB 1217 that there are no transgender students competing this year.  In previous years, there have been several students who did compete under careful rules that have been developed on a case-by-case basis with the local school administrators and local school boards. 

Proponents have led an often repeated fear, with no basis in fact, that if boys are allowed to compete on girls teams en masse, there will be no more girls teams, leaving only boys teams and coed teams.  This is preposterous.  This idea creates the impression that mediocre male athletes will put on girls uniforms to be on the girls team and then go to math class as a boy . . . choosing to play on the girls team so they can win games and state championships.  The truth is that transgender females live as girls all day every day, on weekends, at home and during the off season.

Earlier in the session, HB 1217 passed House State Affairs Committee on a vote of 11-Yea to 2-Nay and passed the full House of Representatives on a vote of 50-Yea to 17-Nay. 

During the hearing in front of the Senate State Affairs Committee, the bill was “deferred to the 41st day” which means it was essentially tabled – a nice word for dead.  Here is that committee vote:

DEFER HB 1217 TO THE 41ST LEGISLATIVE DAY: Prevailed by roll call vote (6-3-0-0)

Voting Yes: Schoenbeck, Duhamel, Schoenfish, Rohl, Heinert, and Diedrich Voting

Voting No: Crabtree, Bolin, and Cammack


Smoke Out.  The legislative rules allow the full Senate or House of Representatives to override a committee that has killed a bill by having enough members support a motion that directs the committee to deliver the bill, this is known as a “smoke out” (which is doubly fun with multiple bills on marijuana) and requires one-third of the members to support.  Supporting a smoke out requires 12 Senators.

The motion to “smoke out” HB 1217 was successful with a vote of 16-Yea (12 needed) to 18-Nay.  Here is the vote on the motion to smoke out HB 1217:

Sutton moved that the Committee on State Affairs be instructed to deliver HB 1217 to the floor of the Senate, pursuant to Joint Rule 7-7.  And the roll being called: 27 Yeas 16, Nays 18, Excused 1, Absent 0.

Yeas: Bolin, Cammack, Castleberry, Curd, Frye-Mueller, Brock Greenfield, David Johnson, Klumb, Kolbeck, Maher, Novstrup, Sutton, Symens, Tobin, Wiik, and Zikmund

Nays: Breitling, Crabtree, Diedrich, Duhamel, Duvall, Foster, Heinert, Hunhoff, Johns, Nesiba, Herman Otten, Rohl, Rusch, Schoenbeck, Schoenfish, V. J. Smith, Steinhauer, and Wheeler

Excused: Stalzer

Note:  Not all votes to smoke out will be votes to support the bill.  Senators vote to let the full Senate hear the debate on a bill knowing they will vote against the bill on the final vote.

One more step.  Later today (3/8), HB 1217 will face one more vote to decide if the full Senate will or will not debate the bill.  This will be a vote to actually put HB 1217 on the calendar for debate.  The vote to “calendar” takes a simple majority of the members-elect (meaning the full 35 members, not just those present) which is 18 Senators.  Repeat Note:  Senators voting to place HB 1217 on the calendar are not necessarily going to vote for it on the final roll call.

Below you find some of the text of HB 1217, reprinted from the last issue of Capitol-ism:

HB 1217 requires school athletic teams to be male, female or coed and that participation on those teams determined and furthers requires: A team or sport designated as being female is available only to participants who are female, based on their biological sex, as verified in accordance with § 13-67-2.  

To establish which team or sport students must compete this new law will require:

Once each school year and before permitting a student to participate on an athletic team or in a sport, the sponsoring or sanctioning entity shall obtain a written statement verifying:

(1) The student's age;

(2) The student's biological sex, as ascertained at or before birth in accordance with the student's genetics and reproductive biology; and

(3) That the student is not taking and has not taken, during the preceding twelve months, any performance enhancing drugs, including anabolic steroids.


Super Majority Vote for Tax/Fee Increases & Spending Heads to Ballot - June Primary

HJR 5003 - Proposing and submitting to the voters at the next primary election a new section to Article XI of the Constitution of the State of South Dakota, relating to a three-fifths vote requirement for certain initiated or Legislature-proposed constitutional amendments and initiated or Legislature-referred measures.

The only way that the Constitution of South Dakota can be amended is by a statewide vote.  Only the people of South Dakota can change the Constitution.  There are two ways proposed amendments can get on the ballot.  One is via the initiative process with signatures gathered and submitted to the Secretary of State and the other is via a joint resolution of the legislature.

HJR 5003 is using the legislature to place an amendment on the ballot that will require a 60% approval by voters for future ballot measures that increase taxes or that spends more than $10 million dollars in any of the first 5 years of a proposed program.

The South Dakota Chamber of Commerce and Industry Board of Directors have not taken a position on HJR 5003 specifically but, in general, supports the idea of requiring more than a majority vote for increasing taxes. 

Not About the Vote.  Capitol-ism is not writing about HJR 5003 to focus on the level of the vote or about any of the substance of the proposal.  Capitol-ism wants to make sure members of the South Dakota Chamber of Commerce and Industry understand this vote is scheduled for the Primary Election in June, what it took to schedule that date and why that date is important. 

The rules of the legislature say that when they place an item on the ballot it will be scheduled for the general election.  It is a common practice for legislatures to place constitutional amendments on the ballot to see if voters will agree to the changes.  It is rare that the legislature chooses to use the Primary Election in June.  It was done back in 2018 to amend what is commonly known as “Marci’s Law” which was generally agreed to and passed with a huge margin.

Using the June Primary Election requires the legislature to suspend that rule to have amendments placed on the General Election ballot.  Suspending the rules takes a 2/3rds vote of Senate (24 votes) or the House of Representatives (47 votes).  In the case of HJR 5003, the Senate suspended the rules to change the date to June and then passed the Resolution itself on a vote of 18-Yea to 17-Nay.  The House of Representatives was not required to suspend the rules and voted to approve the Resolution with the June date by a vote of 51-Yea to 17-Nay.

Why June?  Proponents claimed that they wanted to vote on this issue without the discussions of other issues in the General Election.  Perhaps.  More likely is the impact that having this vote will have on another proposal.  A potential ballot measure to expand Medicaid eligibility.

There are two proposals that have been approved for signature gathering that would increase the number of people who are eligible for Medicaid health care – one is a Constitutional Amendment and the other is an Initiative.  Note:  These are being promoted by some long-time political operatives in South Dakota and do not have the endorsement of the South Dakota Chamber of Commerce and Industry nor the health systems in the state.

Should HJR 5003 be approved by the voters in the Primary Election in June of 2022, it will take effect on July 1st of 2022 – almost immediately.  It will take effect in time to increase the vote required for Medicaid expansion if it is on the ballot in 2022 or any subsequent election. 

This is another example of a growing trend in politics and policy systems.  If you don’t think you will like the outcome of a proposal, change the rules to assure the outcome you want!!


Capitol Week with David Owen

There will not be a podcast this week.  Watch for next Monday’s legislative message.


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