LGBT rights in South Dakota

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of South Dakota may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in South Dakota, and same-sex marriages have been recognized since June 2015 as a result of Obergefell v. Hodges. State statutes do not address discrimination on account of sexual orientation or gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal under federal law.

LGBT rights in South Dakota
StatusLegal since 1976
Gender identityState does not require sex reassignment surgery to alter sex on birth certificate
Discrimination protectionsProtections for sexual orientation and gender identity in employment
Family rights
Recognition of relationshipsSame-sex marriage since 2015
AdoptionSame-sex couples allowed to adopt

Law regarding same-sex sexual activity

Prior to European settlement in the 18th and 19th centuries, there were no known legal or social punishments for engaging in homosexual activity. Perceptions toward gender and sexuality among the Native Americans were different to that of the Western world. Several had traditions of "third gender" people (nowadays also called "two-spirit") who would dress and act as the opposite gender, perform tasks associated with the opposite gender and be fully recognized as such by the members of the tribe. Among the Dakota people, male-bodied people who act as female are known as winkta, and as wíŋkte (or winkte) among the Lakota people.[1]

In 1862, the Dakota Territory, which included modern-day North and South Dakota, enacted a criminal ban on heterosexual and homosexual sodomy, which was defined as "crimes against nature". The ban prohibited anal intercourse, regardless of whether the act was committed in private and consensual. Punishment could vary from one year in jail to life imprisonment.[2] In 1877, the maximum penalty was reduced to ten years' imprisonment. In 1910, the definition of sodomy was expanded to include fellatio after State v. Whitmarsh.

In 1976, private, adult, consensual and non-commercial acts of sodomy were legalized with an age of consent set at thirteen years.[3] The age of consent was later raised to fifteen years.[4]

Recognition of same-sex relationships
Main article: Same-sex marriage in South Dakota

South Dakota voters adopted a constitutional amendment in November 2006 that defines marriage as the union of a man and a woman and prohibited the recognition of same-sex relationships under any other name, such as civil unions and domestic partnership agreements.[5] Similar restrictions appear in the state statutes as well.[6]

On June 26, 2015, same-sex marriage became legal in the state of South Dakota and all of the United States due to the Supreme Court ruling of Obergefell v. Hodges.[7]

Rosenbrahn v. Daugaard

On May 22, 2014, six same-sex couples filed a federal lawsuit against South Dakota officials seeking the right to marry and recognition of marriages performed in other jurisdictions. The suit, Rosenbrahn v. Daugaard, was brought by Minneapolis civil rights attorney Joshua A. Newville, who filed a similar lawsuit on behalf of seven same-sex couples in North Dakota on June 6, 2014.[8] U.S. District Court Judge Karen Schreier heard arguments on October 17. The state defendants argued she was bound by the Eighth Circuit's decision in Citizens for Equal Protection v. Bruning (2006), which the plaintiffs said did not address the questions they were raising in this case.[9] On November 12, Judge Schreier denied the defense's motion to dismiss. She found Baker is no longer valid precedent and that Bruning did not address due process or the question of a fundamental right to marry. She dismissed the plaintiffs' claim that South Dakota violated their right to travel.[10] On January 12, 2015, she ruled for the plaintiffs, finding that South Dakota was depriving them of their "fundamental right to marry". She stayed implementation of her ruling pending appeal.[11] On February 10, the plaintiffs asked her to lift the stay, citing the U.S. Supreme Court's denial of a stay in Alabama cases the previous day.[12] Two days later, they requested an expedited response to that request.[13]

Following the decision of the U.S. Supreme Court in Obergefell v. Hodges on June 26, 2015, which held that the denial of marriage rights to same-sex couples is unconstitutional, the state defendants asked the Eighth Circuit to vacate the district court decision and dismiss the case as moot. The plaintiffs on July 1 opposed that request, citing statements by the Attorney General that county officials were responsible individually for interpreting Obergefell. They asked the Eighth Circuit to order the district court to lift its stay.[14] On June 26, Attorney General Marty Jackley said that: "Because we are a nation of laws the state will be required to follow the Court's order that every state must recognize and license same-sex marriage."[15][16] But some reports said he indicated that local officials would determine whether or how soon to issue marriage licenses to same-sex couples.[17][18]

Adoption and parenting

South Dakota permits adoption by single individuals and married same-sex couples.[19] Lesbian couples have access to assisted reproduction services, such as in vitro fertilization. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, but the parents are required to be married.[20] Male gay couples may also undertake gestational and traditional surrogacy arrangements. Courts may declare both intended parents as the legal parents of the child in a pre-birth order.[21]

South Dakota law permits adoption agencies to choose not to place children in certain homes if it would violate the agency's religious or moral convictions. This law, known as S.J. 746, passed into law in May 2017.[22]

Discrimination protections
Further information: LGBT employment discrimination in the United States
Map of South Dakota counties and cities that had sexual orientation and/or gender identity anti–employment discrimination ordinances prior to Bostock
  Sexual orientation and gender identity in public and private employment
  Sexual orientation and gender identity solely in public employment
  Sexual orientation in public employment
  Does not protect sexual orientation and gender identity in employment

No provision of South Dakota law explicitly addresses discrimination on the basis of sexual orientation or gender identity.[23]

The county of Oglala Lakota,[24] and the cities of Sioux Falls,[25] and Vermillion prohibit discrimination against county/city employees on the basis of sexual orientation and gender identity. Others including Minnehaha County,[26] Spearfish and Watertown prohibit discrimination against county/city employees on the basis of sexual orientation only.

In March 2018, the city of Brookings became the first jurisdiction in South Dakota to enact a comprehensive anti-discrimination ordinance covering sexual orientation and gender identity, banning discrimination against public and private employees, in housing and in public accommodations (such as restaurants, etc.).[27][28]

Bostock v. Clayton County
Main article: Bostock v. Clayton County

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, consolidated with Altitude Express, Inc. v. Zarda, and in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that discrimination in the workplace on the basis of sexual orientation or gender identity is discrimination on the basis of sex, and Title VII therefore protects LGBT employees from discrimination.[29][30][31]

Hate crime law

South Dakota law does not address hate crimes based on gender identity or sexual orientation.[32] However, federal law has covered both categories since 2009, when the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed into law by President Barack Obama. Hate crimes committed on the basis of the victim's sexual orientation or gender identity can thus be prosecuted in federal court.

In September 2019, the Oglala Sioux Tribal Council passed hate crime legislation which protects LGBT and two-spirit individuals, with 14 votes in favor, 2 against and 1 abstention.[33][34]

Transgender rights
Further information: Transgender rights in the United States

South Dakota allows transgender people to change their legal gender. In order to update a birth certificate, the applicant must submit to the Office of Vital Records a copy of a court order changing their legal name and gender, a copy of the photo ID, an "Application for Birth Record" as well as pay the required fee. The Department of Public Safety will change the gender marker on a driver's license and state ID card upon receipt of a court order certifying the gender change or a signed affidavit from a licensed physician confirming sex reassignment surgery.[35]

In March 2016, Governor Dennis Daugaard vetoed a bill that would have required transgender students to use bathrooms and locker rooms that match their birth sex.[36]

On 12 February 2019, the House passed legislation (known as HB 1108) which would have barred public schools up to grade K-7 (12-13 years old) from instructing students on gender identity and expression.[37][38] However, the bill failed to pass the Senate before it adjourned sine die on March 29, 2019. Human Rights Campaign reported that the "bill would prevent teachers from being able to acknowledge the transgender identity of people they are teaching about as well as prevent them from being able to support students who identify as transgender."

On 10 February 2020, a state senate committee voted down a legislative proposal that would have prevented minors from being allowed to transition. The first version of the bill would have criminalized physicians for prescribing hormones and hormone blockers or for performing surgery. An amended version of the bill dropped charges against physicians but would still have allowed the patients to sue if they later felt regret. The committee voted not to pursue the bill at all.[39][40] Similar legislative efforts existed concurrently in Florida, South Carolina, Colorado, Oklahoma and Missouri.[41]

Public opinion

A 2017 Public Religion Research Institute (PRRI) poll found that 52% of South Dakota residents supported same-sex marriage, while 37% opposed it and 11% were unsure.[42] The same poll also found that 62% of South Dakotans supported an anti-discrimination law covering sexual orientation and gender identity, while 28% were opposed.[43] Furthermore, 49% were against allowing businesses to refuse to serve gay and lesbian people due to religious beliefs, while 36% supported allowing such religiously-based refusals.[44]

Public opinion for LGBT anti-discrimination laws in South Dakota
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion
Public Religion Research Institute January 2-December 30, 2019 157 ? 68% 24% 8%
Public Religion Research Institute January 3-December 30, 2018 184 ? 66% 27% 7%
Public Religion Research Institute April 5-December 23, 2017 259 ? 62% 28% 10%
Public Religion Research Institute April 29, 2015-January 7, 2016 278 ? 67% 30% 3%

Summary table
Same-sex sexual activity legal (Since 1976)
Equal age of consent (Since 1976)
Anti-discrimination laws in employment (Since 2020)
Anti-discrimination laws in housing
Anti-discrimination laws in public accommodations
Anti-discrimination laws in health care
LGBT anti-bullying policy in schools and colleges (School districts forbidden from enumerating classes of protected children)
Same-sex marriages (Since 2015)
Stepchild and joint adoption by same-sex couples
Lesbian, gay and bisexual people allowed to serve openly in the military (Since 2011)
Transgender people allowed to serve openly in the military (Since 2021)[45]
Intersex people allowed to serve openly in the military (Current DoD policy bans "hermaphrodites" from serving or enlisting in the military)[46]
Right to change legal gender
Conversion therapy banned on minors
Access to IVF for lesbian couples
Surrogacy arrangements legal for gay male couples [21]
MSMs allowed to donate blood / (Since 2020; 3-month deferral period)[47]

See also

References
  1. Sabine Lang, Men as Women, Women as Men ISBN 0292777957, 2010
  2. The History of Sodomy Laws in the United States, South Dakota
  3. William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010
  4. Laws of South Dakota 1976, page 227, ch. 158, enacted Feb. 27, 1976, effective Apr. 1, 1977
  5. CNN: 2006 Key Ballot Measures, accessed April 10, 2011
  6. Human Rights Campaign: South Dakota Marriage/Relationship Recognition Law Archived 2012-07-25 at the Wayback Machine, accessed April 10, 2011
  7. Liptak, Adam (June 26, 2015). "Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide". The New York Times.
  8. Howard, Adam (May 23, 2014). "Gay couples sue South Dakota to overturn same-sex marriage ban". MSNBC. Retrieved October 21, 2014.
  9. Young, Steve (October 17, 2014). "No quick decision made in S.D. gay marriage lawsuit". Argus Leader. Retrieved October 21, 2014.
  10. "Order on Motion to Dismiss". Scribd.com. U.S. District Court for South Dakota. Retrieved November 14, 2014.
  11. "Order Granting Plaintiffs' Motion for Summary Judgment". Scribd.com. U.S. District Court for South Dakota. Retrieved January 12, 2015.
  12. "Emergency Motion". Scribd.com. U.S. District Court for South Dakota. Retrieved February 10, 2015.
  13. "Plaintiffs' Motion to set an expedited response schedule". Scribd.com. U.S. District Court for South Dakota. Retrieved February 12, 2015.
  14. "Plaintiffs' Opposition to Motion to Vacate". Equality Case Files. Retrieved July 2, 2015.
  15. "Jackley responds to Supremes gay marriage ruling". Capital Journal. June 26, 2015.
  16. "Marty Jackley comments on future of SD after same-sex marriage ruling". KEVN. June 28, 2015. Retrieved July 2, 2015.
  17. AG Jackley say up to counties on issuing licenses, accessed July 2, 2015
  18. South Dakota AG: Same-sex marriage ruling effective now, up to counties to issue licenses
  19. Human Rights Campaign: South Dakota Adoption Law Archived 2012-03-11 at the Wayback Machine, accessed April 10, 2011
  20. "South Dakota's equality profile". Movement Advancement Project.
  21. "Gestational Surrogacy in South Dakota". Creative Family Connections. Retrieved February 1, 2019.
  22. South Dakota is First State in a Series of Anti-LGBT Bills Advancing Through Legislatures Across the Country
  23. Human Rights Campaign: South Dakota Non-Discrimination Law Archived 2012-07-25 at the Wayback Machine, accessed April 10, 2011
  24. "Victory in Shannon County!" (Press release). Equality South Dakota. April 28, 2009. Archived from the original on May 31, 2014. Retrieved May 25, 2013.
  25. "Municipal Equality Index" (PDF). Human Rights Campaign. Retrieved November 21, 2013.
  26. "Human Resources - Frequently Asked Questions" (PDF). Minnehaha County. Archived from the original (PDF) on May 30, 2009. Retrieved May 25, 2013. Minnehaha County is an Equal Opportunity Employer and does not discriminate on the basis of [...] sexual orientation
  27. "Equal Employment Opportunity & Affirmative Action Policy". City of Brookings, SD. Retrieved May 24, 2013.
  28. Brookings Becomes First City in South Dakota to Enact Comprehensive LGBTQ-Inclusive Ordinance
  29. Biskupic, Joan (June 16, 2020). "Two conservative justices joined decision expanding LGBTQ rights". CNN.
  30. "US Supreme Court backs protection for LGBT workers". BBC News. June 15, 2020.
  31. Liptak, Adam (June 15, 2020). "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules". The New York Times.
  32. Human Rights Campaign: South Dakota Hate Crimes Law Archived 2012-07-25 at the Wayback Machine, accessed April 10, 2011
  33. "Native American tribe becomes first to pass hate crime law protecting LGBT people". PinkNews. September 30, 2019.
  34. "The Oglala Sioux Tribe passes hate crime law protecting its LGBTQ citizens". Indian Country Today. September 19, 2019.
  35. South Dakota, National Center for Transgender Equality
  36. South Dakota governor vetoes transgender bathroom bill
  37. "SDLRC - 2019 House Bill 1108 - House". sdlegislature.gov. Retrieved 2019-02-13.
  38. "South Dakota House Passes Discriminatory Anti-Transgender Bill". Human Rights Campaign. 12 February 2019. Retrieved 2019-02-13.
  39. Groves, Stephen (10 February 2020). "Ban on treatments for transgender kids fails in South Dakota". Sioux City Journal. Retrieved 2020-02-12.
  40. Wax-Thibodeaux, Emily (10 February 2020). "In South Dakota, a budding transgender movement is taking on conservative lawmakers — and winning". Washington Post. Retrieved 12 February 2020.
  41. Meadow, Tey (6 February 2020). "Restricting care for transgender teens would be a terrible mistake". Washington Post. Retrieved 9 February 2020.
  42. Public opinion on same-sex marriage by state: South Dakota. PRRI – American Values Atlas.
  43. Public opinion on LGBT nondiscrimination laws by state: South Dakota. PRRI – American Values Atlas.
  44. Public opinion on religiously based refusals to serve gay and lesbian people by state: South Dakota. PRRI – American Values Atlas.
  45. Baldor, Lolita; Miller, Zeke (January 25, 2021). "Biden reverses Trump ban on transgender people in military". Associated Press.
  46. "Medical Conditions That Can Keep You From Joining the Military". Military.com.
  47. McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.
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