LGBT rights in South Carolina

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LGBT rights in South Carolina
Map of USA SC.svg
Same-sex sexual activity legal? Legal since 2003
(Lawrence v. Texas)
Gender identity/expression Altering sex on birth certificate does not require sex reassignment surgery
Discrimination protections None statewide
Family rights
Recognition of
relationships
Same-sex marriage legal since 2014
Adoption No restrictions

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of South Carolina 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]

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.[2]

Recognition of same-sex relationships[edit]

South Carolina 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. 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.[3] The Fourth Circuit Court of Appeals denied the state's request for a stay pending appeal or a temporary stay on November 18.[4] 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.[5] 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.[6] Justice Roberts referred the request to the full court, which denied it with Justices Scalia and Thomas dissenting on November 20.[7] 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]

LGBT flag map of South Carolina

South Carolina permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples or on stepchild adoptions.[8] Children's birth certificates are automatically listed with the names of the biological mother and father. 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 requires 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.[9]

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."[10] 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 and gender identity solely in public employment
  Sexual orientation with anti–employment discrimination ordinance
  Does not protect sexual orientation and gender identity in employment

No provision of South Carolina law explicitly addresses discrimination on the basis of sexual orientation or gender identity.[11]

Myrtle Beach[12] and Richland County[13] prohibit discrimination on the basis of sexual orientation and gender identity in employment. Other cities, including Columbia, Charleston and Latta,[14] prohibit such discrimination but for city employees only.[15] The coastal city of Folly Beach prohibits discrimination based on sexual orientation, but not gender identity.[16]

Hate crime laws[edit]

South Carolina does not have a hate crimes law.[17]

Gender identity and expression[edit]

In June 2013, the Social Security Administration implemented a policy which allows for transgender people to change their gender on their Social Security records by submitting either government-issued documentation reflecting a change, or a certification from a physician confirming that they have had appropriate clinical treatment for gender transition. This policy no longer requires that an individual have sex reassignment surgery to change their documentation.[18]

References[edit]

  1. ^ a b Supreme Court allows gay marriage to proceed in South Carolina Reuters
  2. ^ Marghretta Adeline Hagood, "South Carolina's Sexual Conduct Laws After Lawrence v. Texas," in South Carolina Law Review, Summer 2010.
  3. ^ Johnson, Chris (November 12, 2014). "Judge strikes down South Carolina ban on same-sex marriage". Washington Blade. Retrieved November 12, 2014. 
  4. ^ "Stay Denied". Scribd.com. Retrieved November 18, 2014. 
  5. ^ "South Carolina Stay Application". Scribd.com. Retrieved November 18, 2014. 
  6. ^ Denniston, Lyle (November 18, 2014). "Emergency Application to Stay". SCOTUSblog. Retrieved November 18, 2014. 
  7. ^ "Order in Pending Case" (PDF). Supreme Court of the United States. November 20, 2014. Retrieved November 20, 2014. 
  8. ^ Human Resources Campaign: South Carolina Adoption Law , accessed April 10, 2011
  9. ^ "Judge orders DHEC to amend birth certificate for same-sex couple". 12 September 2015. 
  10. ^ Federal Judge Orders South Carolina to List Same-Sex Parents on Birth Certificates
  11. ^ Human Resources Campaign: South Carolina Non-Discrimination Law, accessed April 10, 2011
  12. ^ Comer, Matt (June 11, 2014). "Myrtle Beach passes far-reaching LGBT protections". Q-Notes. Retrieved June 12, 2014. 
  13. ^ Comer, Matt (June 8, 2011). "South Carolina county passes non-discrimination ordinance". Q-Notes. Retrieved April 4, 2012. 
  14. ^ "Latta becomes South Carolina's smallest town to pass LGBT-friendly Non-Discrimination Ordinances". WBTW. November 20, 2014. 
  15. ^ "Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity". Human Rights Campaign. Retrieved May 25, 2013. 
  16. ^ South Carolina City Adopts Non-discrimination Ordinance
  17. ^ Human Resources Campaign: South Carolina Hate Crimes Law, accessed April 10, 2011
  18. ^ Transgender Inclusion & Protection SC Equality