LGBT rights in South Dakota

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Map of USA SD.svg
StatusLegal since 1976
Gender identityState does not require sex reassignment surgery to alter sex on birth certificate
Discrimination protectionsNone statewide
Family rights
Recognition of relationshipsSame-sex marriage since 2015
AdoptionSame-sex couples allowed to adopt

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, as is same-sex marriage. However, discrimination on the account of sexual orientation or gender identity is not expressly addressed in the state's civil right law.

Law regarding same-sex sexual activity[edit]

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[edit]

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[edit]

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 had 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 violates 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 the denial of marriage rights to same-sex couples 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[edit]

South Dakota permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples or on second-parent adoptions.[19]

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.[20]

Discrimination protections[edit]

Map of South Dakota counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  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 bases of sexual orientation or gender identity.[21]

The county of Oglala Lakota,[22] and the cities of Sioux Falls,[23] and Vermillion prohibit discrimination against county/city employees on the basis of sexual orientation and gender identity. Others including Minnehaha County,[24] 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.).[25][26]

Hate crime law[edit]

South Dakota's hate crime law does not address hate crimes based on gender identity or sexual orientation.[27] However, the U.S. federal hate crime law addresses such crimes since the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed into law in October 2009.

Gender identity and expression[edit]

South Dakota allows transgender people to change their legal gender. In order to do so, they 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.[28] Undergoing sex reassignment surgery is not required.

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.[29]

On 12 February 2019, the House passed HB 1108 which would bar public schools up to grade K-7 (12-13 years old) from mentioning gender identity and expression.[30][31] 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."

Public opinion[edit]

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.[32] 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.[33] 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.[34]

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 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[edit]

Same-sex sexual activity legal Yes (Since 1976)
Equal age of consent Yes (Since 1976)
Anti-discrimination laws for sexual orientation No/Yes (Varies by jurisdiction)
Anti-discrimination laws for gender identity or expression No/Yes (Varies by jurisdiction)
Same-sex marriages Yes (Since 2015)
Recognition of same-sex relationships Yes (Since 2015)
Stepchild adoption by same-sex couples Yes
Joint adoption by same-sex couples Yes
Lesbians, gays and bisexuals allowed to serve openly in the military Yes (Since 2011 for lesbians, gays and bisexuals)
Transgender people allowed to serve openly in the military No
Right to change legal gender Yes
Conversion therapy banned on minors No
Access to IVF for lesbians Yes
Commercial surrogacy for gay male couples Yes[35]
MSMs allowed to donate blood No/Yes (1 year deferral period)

See also[edit]

References[edit]

  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 is First State in a Series of Anti-LGBT Bills Advancing Through Legislatures Across the Country
  21. ^ Human Rights Campaign: South Dakota Non-Discrimination Law Archived 2012-07-25 at the Wayback Machine, accessed April 10, 2011
  22. ^ "Victory in Shannon County!" (Press release). Equality South Dakota. April 28, 2009. Archived from the original on May 31, 2014. Retrieved May 25, 2013. Cite uses deprecated parameter |dead-url= (help)
  23. ^ "Municipal Equality Index" (PDF). Human Rights Campaign. Retrieved November 21, 2013.
  24. ^ "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 Cite uses deprecated parameter |deadurl= (help)
  25. ^ "Equal Employment Opportunity & Affirmative Action Policy". City of Brookings, SD. Retrieved May 24, 2013.
  26. ^ Brookings Becomes First City in South Dakota to Enact Comprehensive LGBTQ-Inclusive Ordinance
  27. ^ Human Rights Campaign: South Dakota Hate Crimes Law Archived 2012-07-25 at the Wayback Machine, accessed April 10, 2011
  28. ^ South Dakota, National Center for Transgender Equality
  29. ^ South Dakota governor vetoes transgender bathroom bill
  30. ^ "SDLRC - 2019 House Bill 1108 - House". sdlegislature.gov. Retrieved 2019-02-13.
  31. ^ "South Dakota House Passes Discriminatory Anti-Transgender Bill". Human Rights Campaign. 12 February 2019. Retrieved 2019-02-13.
  32. ^ Public opinion on same-sex marriage by state: South Dakota. PRRI – American Values Atlas.
  33. ^ Public opinion on LGBT nondiscrimination laws by state: South Dakota. PRRI – American Values Atlas.
  34. ^ Public opinion on religiously based refusals to serve gay and lesbian people by state: South Dakota. PRRI – American Values Atlas.
  35. ^ "Gestational Surrogacy in South Dakota". Creative Family Connections. Retrieved February 1, 2019.