As female representation hits new highs among states, constitutions still assume officials are male
As female representation hits new highs among states, constitutions still assume officials are male
PHOENIX (AP) — South Dakota’s constitution refers to the governor as a “he.”
But for the past six years, the governor was a “she” — Kristi Noem, the first female to hold the position there. The conservative Republican pushed a constitutional amendment to change the gendered language. But voters rejected the measure in the 2024 general election that also would have been inclusive of nonbinary people.
Across the nation, state constitutions presume officeholders are male, and they increasingly are outdated. This year, a record of 13 women were serving as governor before Noem stepped down to serve in President Donald Trump’s Cabinet. In state legislatures, 2,469 women are serving, according to the Center for American Women and Politics at Rutgers University.
Most states haven’t modernized their constitutions to reflect the rise of women in politics. Among those that have are New York’s, which became gender-neutral in 2001, and Vermont’s, where voters approved a change from “men” to “persons” in 1994.
An effort in Washington state to update the state’s constitution died in a legislative committee in 2023. In Connecticut, state Sen. Mae Flexer says she’ll make another run at revising the constitution in this year’s legislative session. Some states, like Nevada and California, have made changes within their legislatures to refer to lawmakers as assemblymembers instead of assemblymen or assemblywomen.
“Language matters, it conveys a message about values, it conveys a message about who belongs,” said Debbie Walsh, director of the Center for American Women and Politics.
Noem began her 2023 State of the State address with a call to update the state’s constitution, which was created in 1889.
“The South Dakota state constitution requires the governor to begin each legislative session by giving the Legislature information concerning the affairs of the state and recommending the measures he considers necessary,” Noem said. “Notice I didn’t say ‘she.’ The constitution doesn’t say she, and maybe we should fix that sometime.”
A few months later, Noem signed a bill to update male references to more gender-neutral language in state law, such as changing “he shall deem” to “the Governor deems.” But amending the state’s founding document requires voter approval — and South Dakotans didn’t go for it.
The bill’s sponsor, Republican state Sen. Erin Tobin, saw it as a way to reflect the state’s progress in electing women and celebrating them. She said the amendment failed partly because of the word “pronoun” in the ballot question.
It entangled the effort with the broader conservative sentiment that “nonbinary” is not a legitimate gender identity. Others cited a lack of campaigning for or against the measure and concerns over the financial cost of making a change.
Although “he” and “she” are inherently inclusive of many transgender people who use those pronouns, Noem has a track record opposing gender transitions.
Noem signed a bill in 2023 prohibiting gender-affirming care for youth and in 2022 signed a bill banning transgender girls and college-age women from playing in school sports leagues that match their gender identity.
Noem resigned her office in late January to oversee the U.S. Department of Homeland Security under Trump, who issued an executive order last month directing the federal government to recognize only two sexes — male and female. Trump also signed an executive order Wednesday that intended to prohibit transgender athletes from participating in girls’ and women’s sports.
Trump emphasized his opposition to transgender rights in his 2024 presidential bid. Aligned political action committees spent tens of millions of dollars on anti-transgender attack ads.
Had she been unfamiliar with the South Dakota measure, Tobin said she would have voted no based on how it read. The state’s attorney general writes the titles and explanations for constitutional amendments.
Republican South Dakota state Rep. Brandei Schaefbauer was among those who encouraged voters to turn down the measure.
Schaefbauer said she supports referring to officeholders as “he” or “she” but opposes gender-neutral references.
“That is one of my biggest oppositions to this,” Schaefbauer said. “We are male and female, and when this was gender-neutralized in the constitution, it was taking away the personhood and that is not how I live my life.”
Neil Fulton, dean of the University of South Dakota School of Law, said that masculine pronouns have long been understood to encompass all people and its usage in the state constitution reflects the drafting convention at the time.
“Certainly we know that the officeholder limits in South Dakota have never been interpreted to preclude female officeholders,” said Fulton. “Why? We have a female governor and we’ve had a variety of statewide female elected officials previously. And no one’s ever challenged that, so it would not have worked substantive change.”
He said language use and convention evolve “dramatically” over time, and proponents argued those conventions are changing. The state’s legislative drafting manual discourages the use of male pronouns when referring to an individual or class of individuals. ___ The Associated Press’ women in the workforce and state government coverage receives financial support from Pivotal Ventures. AP is solely responsible for all content. Find AP’s standards for working with philanthropies, a list of supporters and funded coverage areas at AP.org.
By SEJAL GOVINDARAO
Associated Press
