Since we’ve got all the vitriol and opprobrium out of the way, I have a serious question.
In order to avoid what you regard as the inevitable litigation brought on by the bill as the SD legislature has drawn it up and voted for, how would you craft the legislation so as to achieve the result of only allowing females to compete against females?
Who benefits from allowing the NCAA and the C of C to place an effective veto on such a law as this?
The bill, with Noem’s proposed revisions, still explicitly provides that women’s sports are “available only to participants who are female, based on their biological sex, as reflected on the birth certificate or affidavit provided upon initial enrollment.” That’s pretty clear. What else do you think is needed to achieve the desired result?
The absence of a private cause of action certainly doesn’t leave the law unenforceable. For example, there is also a statute that requires public schools to “provide instruction in substantial conformity to the accreditation standards adopted by the South Dakota Board of Education Standards.” No private cause of action or other enforcement mechanism appears in that chapter.
This is because schools are already obligated to follow state law, and South Dakota law already provides mechanisms to compel schools to comply with state law if they don’t. For example, any school board decision is appealable to circuit court, under section 13-46-1, by “any person aggrieved.” There are probably others, but whatever they are, they seem to work because we don’t hear about some epidemic of South Dakota schools ignoring state law.
Even if a specific, private cause of action was needed here, I don’t see why you would need anything other than injunctive relief. I certainly don’t see why you need a private cause of action for damages, including mental anguish, for any student “indirectly harmed” by a violation.
I have never heard of a statutory cause of action that broad or vague (and I’ve litigated civil RICO and anti-trust claims). The way the statute is written, if High School A’s soccer team had a tranny on it, even unknowingly, and they beat High School B, every single student at High School B would have a potential cause of action for mental anguish damages, whether they were at the school or not. That is insane.
If you think schools are just going to ignore the law, do you really think the possibility of liability for damages will bring them in line? Of course it won’t. As someone who has sued governments more than once, I can tell you that they really do not care about monetary liability or about paying lawyers to defend lawsuits, any more than they care about spending other people’s money in any other context.
So the answer is pretty simple: Rely on existing enforcement mechanisms, which have worked fine. If you really need more, then add a private cause of action for injunctive relief if South Dakota common-law doesn’t already provide one. You don’t need a private cause of action for damages, and certainly not one drafted like that.