LGBT rights in South Carolina

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LGBT rights in South Carolina
South Carolina (US)
StatusLegal since 2003 (Lawrence v. Texas)
Gender identityAltering sex on birth certificate does not require sex reassignment surgery
Discrimination protectionsNone statewide except in employment June 15, 2020
Family rights
Recognition of relationshipsSame-sex marriage since 2014
AdoptionSame-sex couples allowed to adopt

Lesbian, gay, bisexual, and transgender (LGBT) people 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Carolina as a result of the U.S. Supreme Court decision in Lawrence v. Texas, although the state legislature has not repealed its sodomy laws. 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]

Main article: Same-sex marriage in South Carolina

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 court order, something not required of married different-sex couples.

Discrimination protections[edit]

Further information: LGBT employment discrimination in the United States
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] However, in 2020, a federal law was expanded to protect LGBT discrimination in the workplace, which extends to all 50 US states, including South Carolina.[13]

Mount Pleasant,[14][15] Myrtle Beach,[16] and Richland County[17] prohibit discrimination on the basis of sexual orientation and gender identity in employment. Other cities, including Columbia, Charleston and Latta,[18] prohibit such discrimination but for city employees only.[19] The coastal city of Folly Beach prohibits discrimination based on sexual orientation, but not gender identity.[20]

Domestic violence law[edit]

South Carolina is the only state in the United States to not include same-sex couples in domestic violence statutes. The legislation only explicitly includes opposite-sex couples.[21][22]

Hate crime law[edit]

South Carolina does not have a hate crime law.[23] 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]

See also: Transgender rights in the United States

Changing one's legal gender on the birth certificate does not require sex reassignment surgery.[24]

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".[25]

No promo-homo law[edit]

See also: No promo homo laws

In March 2020, a federal judge declared an archaic 1988 law "banning homosexual or gay topics within school classrooms" unconstitutional. This law is very similar to the UK section 28 law, which has been repealed.[26][27][28]

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.[29]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 2003 under Lawrence v. Texas ruling; not codified into law yet)
Equal age of consent (16) Yes
Anti-Discrimination laws in Employment Yes (Since 2020 under Bostock v. Clayton County ruling)
Anti-Discrimination laws in Housing No
Anti-Discrimination laws in Public Accommodations No
Anti-Discrimination laws in the provision of goods and services No
Same-sex marriages Yes (Since 2015 under Obergefell v. Hodges ruling)
Recognition of same-sex couples Yes
Stepchild adoption by same-sex couples Yes
Joint adoption by same-sex couples Yes
Domestic Violence laws inclusive of same-sex couples No (Only state in the US to have such gendered language in its domestic violence laws)[30]
Lesbian, gay and bisexual people allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes/No (Most Transgender personnel allowed to serve openly since 2021)[31]
Transvestites allowed to serve openly in the military No[32]
Intersex people allowed to serve openly in the military X/Yes (Current DoD policy bans "Hermaphrodites" from serving or enlisting in the military)[32]
Right to change legal gender Yes (Requires court order but not sex reassignment surgery)[24]
Access to IVF for lesbians Yes
Automatic parenthood on birth certificates for children of same-sex couples Yes
Gay and trans panic defense banned X
Conversion therapy banned on minors X
Third gender option X
Commercial surrogacy for gay male couples Yes
MSMs allowed to donate blood Yes/No (3 month deferral period; federal policy)

See also[edit]

References[edit]

  1. ^ a b Hurley, Lawrence (November 20, 2014). "Supreme Court allows gay marriage to proceed in South Carolina". Reuters. Retrieved February 16, 2023.
  2. ^ "Jason Elliott, South Carolina's First Openly Gay Lawmaker, Believes State Is Changing". On Top Magazine. February 5, 2017. Retrieved February 16, 2023.
  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 May 31, 2011, at the Wayback Machine, accessed April 10, 2011,
  10. ^ "Judge orders DHEC to amend birth certificate for same-sex couple". September 12, 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. ^ Ariane de Vogue; Devan Cole (June 15, 2020). "Supreme Court says federal law protects LGBTQ workers from discrimination". CNN. Retrieved July 3, 2020.
  14. ^ Arruda, Paola Tristan (October 22, 2018). "Mount Pleasant passes anti-discrimination ordinances". Live 5 News. Retrieved February 16, 2023.
  15. ^ 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
  16. ^ Comer, Matt (June 11, 2014). "Myrtle Beach passes far-reaching LGBT protections". Q-Notes. Retrieved June 12, 2014.
  17. ^ Comer, Matt (June 8, 2011). "South Carolina county passes non-discrimination ordinance". Q-Notes. Retrieved April 4, 2012.
  18. ^ "Latta becomes South Carolina's smallest town to pass LGBT-friendly Non-Discrimination Ordinances". WBTW. November 20, 2014. Archived from the original on March 4, 2016. Retrieved February 27, 2017.
  19. ^ "Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity". Human Rights Campaign. Retrieved May 25, 2013.
  20. ^ Bolcer, Julie (March 15, 2012). "South Carolina City Adopts Non discrimination Policy". Advocate. Retrieved February 16, 2023.
  21. ^ Advocate, The. "Politics | News from The Advocate". The Advocate. Retrieved February 16, 2023.
  22. ^ "Domestic Violence/Domestic Abuse Definitions and Relationships". www.ncsl.org. Retrieved February 16, 2023.
  23. ^ Human Resources Campaign: South Carolina Hate Crimes Law Archived 2011-05-31 at the Wayback Machine, accessed April 10, 2011,
  24. ^ a b ID Documents Center: South Carolina
  25. ^ South Carolina Gov. Nikki Haley says her state doesn’t need transgender bathroom law
  26. ^ "VICTORY: South Carolina Court Strikes Outdated Anti-LGBTQ Curriculum Law as Unconstitutional".
  27. ^ @LGBTMarriage (March 12, 2020). "#SouthCarolina: State agrees to stop enforcing its "no promo homo" law that forbids talking about #LGBT people in s…" (Tweet) – via Twitter.
  28. ^ "Victory! Judge strikes down state's ban on proper LGBT+ education for kids". March 12, 2020. Archived from the original on August 4, 2020. Retrieved March 14, 2020.
  29. ^ "PRRI – American Values Atlas". ava.prri.org. Retrieved February 16, 2023.
  30. ^ "Code of Laws - Title 16 - Chapter 25 - Domestic Violence".
  31. ^ "Biden reverses Trump ban on transgender people in military". Associated Press. April 20, 2021.
  32. ^ a b "Medical Conditions That Can Keep You from Joining the Military". May 10, 2021.
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