LGBT rights in South Dakota

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LGBT rights in South Dakota
Map of USA SD.svg
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
Yes, since June 26, 2015
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, 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]

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.[1] 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.[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]

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 on that same day.[6]

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.[7] 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.[8] 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.[9] 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.[10] 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.[11] Two days later they requested an expedited response to that request.[12]

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.[13] 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."[14][15] But some reports said he indicated that local officials would determine whether or how soon to issue marriage licenses to same-sex couples.[16][17]

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.[18]

Discrimination protection[edit]

MMap 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
  Gender identity 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.[19]

The county of Oglala Lakota[20] prohibits discrimination on the basis of sexual orientation and gender identity, while the county of Minnehaha[21] and the cities of Brookings[22] and Sioux Falls[23] 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.[24]

See also[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. ^
  7. ^ Howard, Adam (May 23, 2014). "Gay couples sue South Dakota to overturn same-sex marriage ban". MSNBC. Retrieved October 21, 2014. 
  8. ^ Young, Steve (October 17, 2014). "No quick decision made in S.D. gay marriage lawsuit". Argus Leader. Retrieved October 21, 2014. 
  9. ^ "Order on Motion to Dismiss". U.S. District Court for South Dakota. Retrieved November 14, 2014. 
  10. ^ "Order Granting Plaintiffs' Motion for Summary Judgment". U.S. District Court for South Dakota. Retrieved January 12, 2015. 
  11. ^ "Emergency Motion". U.S. District Court for South Dakota. Retrieved February 10, 2015. 
  12. ^ "Plaintiffs' Motion to set an expedited response schedule". U.S. District Court for South Dakota. Retrieved February 12, 2015. 
  13. ^ "Plaintiffs' Opposition to Motion to Vacate". Equality Case Files. Retrieved July 2, 2015. 
  14. ^ "Jackley responds to Supremes gay marriage ruling". Capital Journal. June 26, 2015. 
  15. ^ "Marty Jackley comments on future of SD after same-sex marriage ruling". KEVN. June 28, 2015. Retrieved July 2, 2015. 
  16. ^ AG Jackley say up to counties on issuing licenses, accessed July 2, 2015
  17. ^ [2]
  18. ^ Human Rights Campaign: South Dakota Adoption Law, accessed April 10, 2011
  19. ^ Human Rights Campaign: South Dakota Non-Discrimination Law, accessed April 10, 2011
  20. ^ "Victory in Shannon County!" (Press release). Equality South Dakota. April 28, 2009. Retrieved May 25, 2013. 
  21. ^ "Human Resources - Frequently Asked Questions" (PDF). Minnehaha County. Retrieved May 25, 2013. Minnehaha County is an Equal Opportunity Employer and does not discriminate on the basis of [...] sexual orientation 
  22. ^ "Equal Employment Opportunity & Affirmative Action Policy". City of Brookings, SD. Retrieved May 24, 2013. 
  23. ^ "Municipal Equality Index" (PDF). Human Rights Campaign. Retrieved November 21, 2013. 
  24. ^ Human Rights Campaign: South Dakota Hate Crimes Law, accessed April 10, 2011