LGBT rights in South Carolina

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Map of USA SC.svg
StatusLegal since 2003
(Lawrence v. Texas)
Gender identityAltering sex on birth certificate requires sex reassignment surgery
Discrimination protectionsNone statewide
Family rights
Recognition of relationshipsSame-sex marriage since 2014
AdoptionSame-sex couples allowed to adopt

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of South Carolina may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in South Carolina. Same-sex couples and families headed by same-sex couples are eligible for all of the protections available to opposite-sex married couples.[1] However, discrimination on the basis of sexual orientation and gender identity is not banned statewide.

In February 2017, South Carolina voters elected their first openly gay lawmaker to the South Carolina House of Representatives. Jason Elliott represents the 22nd District (which includes part of Greenville) and is a member of the Republican Party.[2]

Legality of same-sex sexual activity[edit]

South Carolina's sodomy laws, which made "buggery" a felony punishable by five years in prison or a $500 fine, were invalidated by the 2003 U.S. Supreme Court decision in Lawrence v. Texas.[3]

Recognition of same-sex relationships[edit]

South Carolina voters adopted a constitutional amendment in November 2006 defining marriage as the union of a man and a woman and prohibited the recognition of same-sex relationships under any other name. On November 12, 2014, U.S. District Judge Richard Gergel ruled for the plaintiffs in the case of Condon v. Haley and stayed his decision to overturn the state's constitutional ban on same-sex marriage until noon on November 20.[4] The Fourth Circuit Court of Appeals denied the state's request for a stay pending appeal or a temporary stay on November 18.[5] Attorney General Alan Wilson asked Chief Justice John Roberts, as Circuit Justice for the Fourth Circuit, for an emergency stay pending appeal later that day.[6] It made an argument other states in similar cases had not made to the Supreme Court, that the principle of federalism known as the "domestic relations exception" –which restricts the role of federal courts in certain areas reserved to the states– requires clarification.[7] Justice Roberts referred the request to the full court, which denied it with Justices Scalia and Thomas dissenting on November 20.[8] The first same-sex marriage took place in South Carolina on November 19, 2014 and marriage licences were accepted the next day as the state began to recognize and perform other same-sex marriages.[1]

Adoption and parenting[edit]

South Carolina permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples or on stepchild adoptions.[9] Children's birth certificates are automatically listed with the names of the parents. Prior to 2017, in order for a birth certificate to be legally changed to include two same-sex individuals as the parents of a child, assuming one of the two individuals is the biological parent, South Carolina's department responsible for birth certificates required one of two legal certifications:

  • A certificate of adoption by which the non-biological parent completes a stepchild adoption of the child; or
  • An order of a South Carolina Family Court finding that the two individuals are the legal parents of the child and directing the department to list the individuals as the parents on the birth record.[10]

On 15 February 2017, a federal judge ordered the Government of South Carolina to list both same-sex parents on their children's birth certificates. A married same-sex couple filed a lawsuit, alleging a violation of their Due Process and Equal Protection rights under the 14th Amendment as interpreted in Obergefell v. Hodges, after the state refused to list the non-biological mother on their twins' birth certificates. U.S. District Judge Mary Geiger Lewis ruled that "listing a birth mother's spouse as her child’s second parent is one of the terms and conditions of civil marriage in South Carolina."[11] South Carolina's Department of Health and Environmental Control previously insisted that it would only issue birth certificates listing both same-sex spouses as parents if those couples obtained an adoption or a court order, something not required of married different-sex couples.

Discrimination protections[edit]

Map of South Carolina counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation with anti–employment discrimination ordinance
  Sexual orientation and gender identity solely in public employment
  Does not protect sexual orientation and gender identity in employment

No provision of South Carolina's anti-discrimination law explicitly addresses discrimination on the basis of sexual orientation or gender identity.[12]

Mount Pleasant,[13][14] Myrtle Beach,[15] and Richland County[16] prohibit discrimination on the basis of sexual orientation and gender identity in employment. Other cities, including Columbia, Charleston and Latta,[17] prohibit such discrimination but for city employees only.[18] The coastal city of Folly Beach prohibits discrimination based on sexual orientation, but not gender identity.[19]

Domestic violence law[edit]

South Carolina is the only state in the United States to not include same-sex couples within domestic violence statutes. The legislation only explicitly includes opposite-sex couples.[20][21]

Hate crime law[edit]

South Carolina does not have a hate crime law.[22] Hate crimes motivated by sexual orientation and/or gender identity, however, are banned federally under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.

Gender identity and expression[edit]

Changing one's legal gender on birth certificate does not require sex reassignment surgery.[23]

In April 2016, after North Carolina passed a law restricting transgender people's access to public bathrooms and a similar bill was introduced to the South Carolina Legislature, Governor Nikki Haley said she opposes such a law and views it as "unnecessary".[24]

Public opinion[edit]

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 53% of South Carolina residents supported same-sex marriage, while 37% opposed it and 10% were unsure. Additionally, 67% supported an anti-discrimination law covering sexual orientation and gender identity. 26% were opposed.[25]

References[edit]

  1. ^ a b Supreme Court allows gay marriage to proceed in South Carolina Reuters
  2. ^ Jason Elliott, South Carolina's First Openly Gay Lawmaker, Believes State Is Changing
  3. ^ Marghretta Adeline Hagood, "South Carolina's Sexual Conduct Laws After Lawrence v. Texas," in South Carolina Law Review, Summer 2010.
  4. ^ Johnson, Chris (November 12, 2014). "Judge strikes down South Carolina ban on same-sex marriage". Washington Blade. Retrieved November 12, 2014.
  5. ^ "Stay Denied". Scribd.com. Retrieved November 18, 2014.
  6. ^ "South Carolina Stay Application". Scribd.com. Retrieved November 18, 2014.
  7. ^ Denniston, Lyle (November 18, 2014). "Emergency Application to Stay". SCOTUSblog. Retrieved November 18, 2014.
  8. ^ "Order in Pending Case" (PDF). Supreme Court of the United States. November 20, 2014. Retrieved November 20, 2014.
  9. ^ Human Resources Campaign: South Carolina Adoption Law Archived 2011-05-31 at the Wayback Machine, accessed April 10, 2011
  10. ^ "Judge orders DHEC to amend birth certificate for same-sex couple". 12 September 2015.
  11. ^ Federal Judge Orders South Carolina to List Same-Sex Parents on Birth Certificates
  12. ^ Human Resources Campaign: South Carolina Non-Discrimination Law Archived 2011-05-31 at the Wayback Machine, accessed April 10, 2011
  13. ^ Mount Pleasant passes anti-discrimination ordinances
  14. ^ AN ORDINANCE TO AMEND THE MOUNT PLEASANT CITY CODE BY ADDING TITLE XVII, TITLED “HUMAN RIGHTS,” TO PROHIBIT DISCRIMINATION IN EMPLOYMENT, HOUSING AND PUBLIC ACCOMMODATIONS AND TO PROVIDE PENALTIES FOR VIOLATIONS
  15. ^ Comer, Matt (June 11, 2014). "Myrtle Beach passes far-reaching LGBT protections". Q-Notes. Retrieved June 12, 2014.
  16. ^ Comer, Matt (June 8, 2011). "South Carolina county passes non-discrimination ordinance". Q-Notes. Retrieved April 4, 2012.
  17. ^ "Latta becomes South Carolina's smallest town to pass LGBT-friendly Non-Discrimination Ordinances". WBTW. November 20, 2014.
  18. ^ "Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity". Human Rights Campaign. Retrieved May 25, 2013.
  19. ^ South Carolina City Adopts Non-discrimination Ordinance
  20. ^ Same-sex partners treated same as heterosexuals under Louisiana domestic violence bill
  21. ^ DOMESTIC VIOLENCE/DOMESTIC ABUSE DEFINITIONS AND RELATIONSHIPS
  22. ^ Human Resources Campaign: South Carolina Hate Crimes Law Archived 2011-05-31 at the Wayback Machine, accessed April 10, 2011
  23. ^ ID Documents Center: South Carolina
  24. ^ South Carolina Gov. Nikki Haley says her state doesn’t need transgender bathroom law
  25. ^ PRRI: American Values Atlas 2017