ACLU of South Dakota: Noem, Jackley statement on Title IX final rule is little more than political grandstanding

South Dakota politicians continue to use trans youth as a political punching bag as Gov. Kristi Noem and Attorney General Marty Jackley criticize the U.S. Department of Education’s final rule that says schools cannot discriminate based on gender identity, transgender status or sexual orientation.

Noem and Jackley said the final rule is a “dangerous dismantling” of the more than 50-year-old civil rights law. The final rule issued by the U.S. Department of Education makes it clear that Title IX covers harassment and discrimination based on sexual orientation, gender identity and sex stereotypes and that a transgender person cannot be prevented from participating in an educational program or activity consistent with their gender identity.

This is little more than political grandstanding, the ACLU of South Dakota said. Samantha Chapman, ACLU of South Dakota advocacy manager, said it’s clearly politics, not fair competition, that led to this statement.

“This isn’t about leveling the playing field for student athletes or protecting fairness in women’s sports,” Chapman said. “If it were, Gov. Noem and Attorney General Jackley would be tackling the actual threats to women’s sports such as severe underfunding, lack of media coverage, sexist ideologies that suggest that women and girls are weak, and pay equity for coaches and players.

“Having the opportunity to participate in sports results in positive outcomes for students — better grades, greater homework completion, higher educational and occupational aspirations, and improved self-esteem. Efforts to ban trans girls from participating in girls’ sports jeopardize their mental health, physical well-being and ability to access educational opportunities comparable to their peers.

“Trans students participate in sports for the same reasons other young people do: to challenge themselves, improve fitness and be part of a team. Transgender youth in South Dakota deserve all of the benefits that come with participating in sports. They also deserve joy, opportunity and protection, not more bullying from the governor.”

The statement from Noem and Jackley is in response to the U.S. Department of Education’s final rule, issued earlier this month, governing schools’ obligations to guarantee that all students, including survivors of sexual harassment, LGBTQ+ students, and pregnant and parenting students, have full and equal access to educational opportunities regardless of sex.

The ACLU supports the provisions in the Department of Education’s final regulation that:

• Make clear that Title IX covers harassment and discrimination based on sexual orientation, gender identity, and sex stereotypes;

• Restore the longstanding “severe or pervasive” standard for sex-based harassment

• Require schools to investigate instances of student-on-student harassment or assaults that occur off campus where they affect students’ access to education;

• Hold institutions accountable when they fail to take prompt and effective action to end sex discrimination;

• Clarify that parties should be able to access relevant evidence while limiting access to irrelevant or privileged evidence;

• Clarify that in the limited circumstances where Title IX’s regulations permit differential treatment or separation on the basis of sex, that differential treatment cannot prevent a person who is transgender from participating in an educational program or activity consistent with the person’s gender identity;

• Clarify the definition of discrimination based on status as a parent to include a range of individuals with caregiving responsibilities for children; and

• Make clear that the existing prohibition on pregnancy discrimination includes discrimination based on lactation and requires recipients to provide a clean lactation space and break time to express milk for both students and employees.

The ACLU opposes the provisions in the final regulation that:

• Do not require universities to provide a live hearing and an opportunity for cross-examination where serious sanctions, such as suspension or expulsion, may apply;

• Permit universities to use the single investigator model, where a single person investigates a complaint and makes the decision about the outcome; and

• Do not require institutions to delay Title IX proceedings upon the request of a respondent who faces an imminent or ongoing criminal investigation or prosecution.

The ACLU’s written comments on the proposed rule can be found here: The American Civil Liberties Union of South Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of South Dakota is part of a three-state chapter that also includes North Dakota and Wyoming. The team in South Dakota is supported by staff in those states.

The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people.  In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ communities. The ACLU of South Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of South Dakota.

Janna Farley, a South Dakota native and USD graduate, joined the ACLU in 2018. She oversees the communications program for the ACLU of South Dakota, North Dakota, and Wyoming chapters.