LGBT rights in South Dakota

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LGBT rights in South Dakota
South Dakota (US)
Same-sex sexual activity legal? Legal since 1976
Gender identity/expression State does not require sex reassignment surgery to alter sex on birth certificate
Discrimination protections None statewide
Family rights
Recognition of
relationships
None
Restrictions:
South Dakota Amendment C limits marriage to man/woman, forbids non-marriage types of same-sex unions
Adoption No restrictions

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of South Dakota face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in South Dakota. Same-sex couples and families headed by same-sex couples do not have the same protections as opposite-sex couples.

Law regarding same-sex sexual activity[edit]

In 1862 the Territory of the Dakotas, which included modern-day North and South Dakota, enacted a criminal ban on heterosexual and homosexual sodomy, which was defined as "crimes against nature" and subsequently interpreted by the State Supreme court to include anal intercourse and fellatio.[1]

In 1976, private, adult, consensual and non-commercial acts of sodomy were legalized with an age of consent set at thirteen years.[2] The age of consent was later raised to fifteen years.[3]

Recognition of same-sex relationships[edit]

South Dakota voters adopted a constitutional amendment in November 2006 that defined 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.[4] Similar restrictions appear in the state statutes as well.[5]

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 filed a similar lawsuit on behalf of seven same-sex couples in North Dakota on June 6, 2014.[6] 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 are raising in this case.[7] 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.[8] 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.[9] 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.[10] Two days later they requested an expedited response to that request.[11]

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.[12]

Discrimination protection[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 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.[13]

The county of Oglala Lakota[14] prohibits discrimination on the basis of sexual orientation and gender identity, while the county of Minnehaha[15] and the cities of Brookings[16] and Sioux Falls[17] prohibits discrimination on the basis of sexual orientation only.

Hate crime laws[edit]

South Dakota's hate crimes law does not address hate crimes based on gender identity or sexual orientation.[18]

References[edit]

  1. ^ [1]
  2. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010
  3. ^ [Laws of South Dakota 1976, page 227, ch. 158, enacted Feb. 27, 1976, effective Apr. 1, 1977
  4. ^ CNN: 2006 Key Ballot Measures, accessed April 10, 2011
  5. ^ Human Rights Campaign: South Dakota Marriage/Relationship Recognition Law, accessed April 10, 2011
  6. ^ Howard, Adam (May 23, 2014). "Gay couples sue South Dakota to overturn same-sex marriage ban". MSNBC. Retrieved October 21, 2014. 
  7. ^ Young, Steve (October 17, 2014). "No quick decision made in S.D. gay marriage lawsuit". Argus Leader. Retrieved October 21, 2014. 
  8. ^ "Order on Motion to Dismiss". Scribd.com. U.S. District Court for South Dakota. Retrieved November 14, 2014. 
  9. ^ "Order Granting Plaintiffs' Motion for Summary Judgment". Scribd.com. U.S. District Court for South Dakota. Retrieved January 12, 2015. 
  10. ^ "Emergency Motion". Scribd.com. U.S. District Court for South Dakota. Retrieved February 10, 2015. 
  11. ^ "Plaintiffs' Motion to set an expedited response schedule". Scribd.com. U.S. District Court for South Dakota. Retrieved February 12, 2015. 
  12. ^ Human Rights Campaign: South Dakota Adoption Law, accessed April 10, 2011
  13. ^ Human Rights Campaign: South Dakota Non-Discrimination Law, accessed April 10, 2011
  14. ^ "Victory in Shannon County!" (Press release). Equality South Dakota. April 28, 2009. Retrieved May 25, 2013. 
  15. ^ "Human Resources - Frequently Asked Questions". Minnehaha County. Retrieved May 25, 2013. Minnehaha County is an Equal Opportunity Employer and does not discriminate on the basis of [...] sexual orientation 
  16. ^ "Equal Employment Opportunity & Affirmative Action Policy". City of Brookings, SD. Retrieved May 24, 2013. 
  17. ^ "Municipal Equality Index". Human Rights Campaign. Retrieved November 21, 2013. 
  18. ^ Human Rights Campaign: South Dakota Hate Crimes Law, accessed April 10, 2011