LGBTQ rights in South Dakota

LGBTQ rights in South Dakota
South Dakota (US)
Status	Legal since 1976
Gender identity	State does not require sex reassignment surgery to alter sex on birth certificate
Discrimination protections	Protections for sexual orientation and gender identity in employment
Family rights
Recognition of relationships	Same-sex marriage since 2015
Adoption	Same-sex couples allowed to adopt

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of South Dakota may face some legal challenges not experienced by non-LGBTQ residents. ^[1] Same-sex sexual activity is legal in South Dakota, and same-sex marriages have been recognized since June 2015 as a result of Obergefell v. Hodges . State statutes do not address discrimination on account of sexual orientation or gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBTQ people is illegal under federal law.

In 2024, The Transformation Project, a transgender rights organisation, sued the state of South Dakota over a discrimination case and won the lawsuit. ^[1]

Law regarding same-sex sexual activity

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 (pronounced [ˈwɪ̃ktɛ] ) among the Lakota people. ^[2]

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. ^[3] 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. ^[4] The age of consent was later raised to fifteen years. ^[5]

Recognition of same-sex relationships

Main article: Same-sex marriage in South Dakota

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. ^[6] Similar restrictions appear in the state statutes as well. ^[7]

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 . ^[8]

Rosenbrahn v. Daugaard

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. ^[9] 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. ^[10] 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 violated their right to travel. ^[11] 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. ^[12] 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. ^[13] Two days later, they requested an expedited response to that request. ^[14]

Following the decision of the U.S. Supreme Court in Obergefell v. Hodges on June 26, 2015, which held that the denial of marriage rights to same-sex couples is 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. ^[15] 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." ^{[16] [17]} But some reports said he indicated that local officials would determine whether or how soon to issue marriage licenses to same-sex couples. ^{[18] [19]}

Adoption and parenting

South Dakota does not specify laws about adoption by single individuals and married same-sex couples. ^[20] Lesbian couples have access to assisted reproduction services, such as in vitro fertilization. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, but the parents are required to be married. ^[21] Male gay couples may also undertake gestational and traditional surrogacy arrangements. Courts may declare both intended parents as the legal parents of the child in a pre-birth order. ^[22]

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. ^[23]

Discrimination protections

Further information: LGBT employment discrimination in the United States

Map of South Dakota counties and cities that had sexual orientation and/or gender identity anti–employment discrimination ordinances prior to Bostock

  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 basis of sexual orientation or gender identity. ^[24]

The county of Oglala Lakota, ^[25] and the cities of Sioux Falls, ^[26] and Vermillion prohibit discrimination against county/city employees on the basis of sexual orientation and gender identity. Others including Minnehaha County, ^[27] 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.). ^{[28] [29]}

In March 2021, Governor Kristi Noem signed a bill into law allowing businesses to deny goods or services to LGBTQ people and others based on the owners' "purpoted religious beliefs". ^{[30] [31]}

Bostock v. Clayton County

Main article: Bostock v. Clayton County

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, consolidated with Altitude Express, Inc. v. Zarda , and in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that discrimination in the workplace on the basis of sexual orientation or gender identity is discrimination on the basis of sex, and Title VII therefore protects LGBT employees from discrimination. ^{[32] [33] [34]}

Hate crime law

South Dakota law does not address hate crimes based on gender identity or sexual orientation. ^[35] However, federal law has covered both categories since 2009, when the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed into law by President Barack Obama. Hate crimes committed on the basis of the victim's sexual orientation or gender identity can thus be prosecuted in federal court.

In September 2019, the Oglala Sioux Tribal Council passed hate crime legislation which protects LGBT and two-spirit individuals, with 14 votes in favor, 2 against and 1 abstention. ^{[36] [37]}

Transgender rights

Further information: Transgender rights in the United States

Identity documents

South Dakota allows transgender people to change their legal gender. In order to update a birth certificate, the applicant 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. The Department of Public Safety will change the gender marker on a driver's license and state ID card upon receipt of a court order certifying the gender change or a signed affidavit from a licensed physician confirming sex reassignment surgery. ^[38]

Gender-affirming care for minors

In February 2023, a bill passed the South Dakota Legislature to ban gender affirming healthcare for trans people under 18 years old. On February 13, the governor signed the bill into law. ^{[39] [40] [41] [42]} Transgender minors will lose access to any puberty blockers or hormones that were previously prescribed to them, as Section 6 of the bill says:

If, prior to July 1, 2023, a healthcare professional has initiated a course of treatment, for a minor...the healthcare professional may institute a period during which the minor's use of the drug or hormone is systematically reduced. That period may not extend beyond December 31, 2023. ^[43]

The law allows adults to sue their healthcare providers for "injury or damages" caused by receiving gender-affirming care as minors. People can file such lawsuits until age 25, or (if they're over 25) "within three years" of becoming aware that their healthcare professional's "violation" caused "injury or damages". ^[43]

Three years earlier, on February 10, 2020, a state senate committee had voted down similar legislative proposals, including one that would have criminalized physicians for prescribing hormones and hormone blockers or for performing surgery (unless they were trying to fit an intersex child into the gender binary), ^{[44] [45]} and another that would not have made physicians' involvement a crime but would have allowed their patients to sue them if they later felt regret. The committee voted not to pursue it. ^{[46] [47]} At that time, similar legislative efforts were underway in Florida, South Carolina, Colorado, Oklahoma and Missouri. ^[48]

Recognition of students' gender

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. ^[49]

On 12 February 2019, the House passed legislation (known as HB 1108) which would have barred public schools up to grade K-7 (12-13 years old) from instructing students on gender identity and expression. ^{[50] [51]} However, the bill failed to pass the Senate before it adjourned sine die on March 29, 2019. 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."

Sports

In March 2021, legislation banning transgender individuals from participating in school sports and athletic teams passed the South Dakota Legislature. Similar laws also passed in Mississippi and Idaho. ^{[52] [53]} On March 19, Governor Kristi Noem refused to sign the bill into law, opposing portions of the bill that would ban transgender athletes from competing in college sports, worrying such a ban would cause collegiate sporting organizations, such as the National Collegiate Athletic Association, to avoid holding games and tournaments in the state. ^{[54] [55] [56]} The Governor did however sign an executive order on banning transgender individuals within female sports. ^[57] The ACLU has threatened a lawsuit in federal court. ^[58]

In January 2022, another similar "anti-transgender sports bill" was introduced and passed the South Dakota Senate and is awaiting a vote in the South Dakota House of Representatives. ^[59] In February 2022, a bill went to the Governor's desk and could be either signed into law or vetoed and also a couple of other bills are still awaiting votes within the legislature. An anti-trans lawmaker went so far as to call transgender individuals "terrorists", which caused immediate outrage. ^{[60] [61]}

On February 4, 2022 the Governor signed the bill into law - becomes effective July 1, 2022. 10 US states have similar laws or regulations that legally ban transgender individuals from playing sports, athletics and Olympics within South Dakota. ^{[62] [63]}

Public opinion

A 2022 Public Religion Research Institute (PRRI) opinion poll found that 63% of South Dakota residents supported same-sex marriage, while 37% opposed it and 1% were unsure. The same poll also found that 67% of South Dakota residents supported an anti-discrimination law covering sexual orientation and gender identity, while 32% were opposed. Additionally, 62% were against allowing businesses to refuse to serve gay and lesbian people due to religious beliefs, while 38% supported allowing such religiously-based refusals. ^[64]

Public opinion for LGBTQ 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 2-December 30, 2019	157	?	68%	24%	8%
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

Same-sex sexual activity legal	(Since 1976)
Equal age of consent	(Since 1976)
Anti-discrimination laws in employment	Although by law it should be protected, the religious freedom laws block its enforcement
Anti-discrimination laws in housing	the religious freedom laws block its enforcement
Anti-discrimination laws in public accommodations	the religious freedom laws block its enforcement
Anti-discrimination laws in health care	the religious freedom laws block its enforcement
LGBT anti-bullying policy in schools and colleges	(School districts forbidden from enumerating classes of protected children)
Same-sex marriages	(Since 2015)
Stepchild and joint adoption by same-sex couples	the religious freedom laws block its enforcement
Lesbian, gay and bisexual people allowed to serve openly in the military	the religious freedom laws block its enforcement
Transgender people allowed to serve openly in the military	(Since 2021) [65]
Intersex people allowed to serve openly in the military	(Current DoD policy bans "hermaphrodites" from serving or enlisting in the military) [66]
Right to change legal gender
Conversion therapy banned on minors
Access to IVF for lesbian couples
Surrogacy arrangements legal for gay male couples	[22]
MSMs allowed to donate blood	/ (Since 2020; 3-month deferral period) [67]

See also

• LGBT history in South Dakota

References

1. Mitchell, Hilary. "Transgender advocacy group sues South Dakota for discrimination – and wins $300,000". PinkNews. Retrieved 3 February 2024.
2. Sabine Lang, Men as Women, Women as Men ISBN   0292777957, 2010
3. The History of Sodomy Laws in the United States, South Dakota
4. William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010
5. Laws of South Dakota 1976, page 227, ch. 158, enacted Feb. 27, 1976, effective Apr. 1, 1977
6. CNN: 2006 Key Ballot Measures, accessed April 10, 2011
7. Human Rights Campaign: South Dakota Marriage/Relationship Recognition Law Archived 2012-07-25 at the Wayback Machine , accessed April 10, 2011
8. Liptak, Adam (June 26, 2015). "Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide". The New York Times.
9. Howard, Adam (May 23, 2014). "Gay couples sue South Dakota to overturn same-sex marriage ban". MSNBC. Retrieved October 21, 2014.
10. Young, Steve (October 17, 2014). "No quick decision made in S.D. gay marriage lawsuit". Argus Leader. Retrieved October 21, 2014.
11. "Order on Motion to Dismiss". Scribd.com. U.S. District Court for South Dakota. Retrieved November 14, 2014.
12. "Order Granting Plaintiffs' Motion for Summary Judgment". Scribd.com. U.S. District Court for South Dakota. Retrieved January 12, 2015.
13. "Emergency Motion". Scribd.com. U.S. District Court for South Dakota. Retrieved February 10, 2015.
14. "Plaintiffs' Motion to set an expedited response schedule". Scribd.com. U.S. District Court for South Dakota. Retrieved February 12, 2015.
15. "Plaintiffs' Opposition to Motion to Vacate". Equality Case Files. Retrieved July 2, 2015.
16. "Jackley responds to Supremes gay marriage ruling". Capital Journal. June 26, 2015.
17. "Marty Jackley comments on future of SD after same-sex marriage ruling". KEVN. June 28, 2015. Archived from the original on June 30, 2015. Retrieved July 2, 2015.
18. AG Jackley say up to counties on issuing licenses Archived 2015-07-03 at the Wayback Machine , accessed July 2, 2015
19. South Dakota AG: Same-sex marriage ruling effective now, up to counties to issue licenses
20. Human Rights Campaign: South Dakota Adoption Law Archived 2012-03-11 at the Wayback Machine , accessed April 10, 2011
21. "South Dakota's equality profile". Movement Advancement Project.
22. "Gestational Surrogacy in South Dakota". Creative Family Connections. Retrieved February 1, 2019.
23. South Dakota is First State in a Series of Anti-LGBT Bills Advancing Through Legislatures Across the Country
24. Human Rights Campaign: South Dakota Non-Discrimination Law Archived 2012-07-25 at the Wayback Machine , accessed April 10, 2011
25. "Victory in Shannon County!" (Press release). Equality South Dakota. April 28, 2009. Archived from the original on May 31, 2014. Retrieved May 25, 2013.
26. "Municipal Equality Index" (PDF). Human Rights Campaign. Archived from the original (PDF) on December 2, 2013. Retrieved November 21, 2013.
27. "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
28. "Equal Employment Opportunity & Affirmative Action Policy". City of Brookings, SD. Retrieved May 24, 2013.
29. Brookings Becomes First City in South Dakota to Enact Comprehensive LGBTQ-Inclusive Ordinance
30. Riley, John (March 12, 2021). "South Dakota Gov. Kristi Noem signs religious refusal bill allowing denials of service to LGBTQ people". Metro Weekly.
31. Holmes, Juwan (March 12, 2021). "South Dakota passes "religious freedom" bill that could legalize discrimination". LGBTQ Nation.
32. Biskupic, Joan (June 16, 2020). "Two conservative justices joined decision expanding LGBTQ rights". CNN.
33. "US Supreme Court backs protection for LGBT workers". BBC News. June 15, 2020.
34. Liptak, Adam (June 15, 2020). "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules". The New York Times.
35. Human Rights Campaign: South Dakota Hate Crimes Law Archived 2012-07-25 at the Wayback Machine , accessed April 10, 2011
36. "Native American tribe becomes first to pass hate crime law protecting LGBT people". PinkNews. September 30, 2019.
37. "The Oglala Sioux Tribe passes hate crime law protecting its LGBTQ citizens". Ict News. September 19, 2019.
38. South Dakota, National Center for Transgender Equality
39. "Human Rights Campaign Condemns South Dakota Governor Kristi Noem for Signing Discriminatory Gender Affirming Care Ban into Law". 13 February 2023.
40. "Human Rights Campaign: South Dakota Lawmakers Turn Their Backs on Trans Kids Once Again". Human Rights Campaign. 9 February 2023. Retrieved 2023-02-14.
41. Cameron, Kesia (9 February 2023). "SD Senate passes bill prohibiting gender-affirming medical care for minors". Dakotanewsnow.com. Retrieved 2023-02-14.
42. Sforza, Lauren (2023-02-14). "Noem signs gender-affirming care ban for South Dakota youth". The Hill. Retrieved 2023-02-14.
43. South Dakota Legislature (2023). "House Bill 1080" (PDF). Retrieved 14 February 2023.
44. Human Rights Watch (2020-01-20). "Lawmakers in the US Unleash Barrage of Anti-Transgender Bills". Human Rights Watch. Retrieved 2020-01-23.
45. Wong, Curtis M. (2020-01-30). "South Dakota House Approves Bill That Would Jail Doctors For Treating Transgender Youth". HuffPost. Retrieved 2020-01-31.
46. Groves, Stephen (10 February 2020). "Ban on treatments for transgender kids fails in South Dakota". Sioux City Journal. Retrieved 2020-02-12.
47. Wax-Thibodeaux, Emily (10 February 2020). "In South Dakota, a budding transgender movement is taking on conservative lawmakers — and winning". Washington Post. Retrieved 12 February 2020.
48. Meadow, Tey (6 February 2020). "Restricting care for transgender teens would be a terrible mistake". Washington Post. Retrieved 9 February 2020.
49. South Dakota governor vetoes transgender bathroom bill
50. "SDLRC - 2019 House Bill 1108 - House". sdlegislature.gov. Retrieved 2019-02-13.
51. "South Dakota House Passes Discriminatory Anti-Transgender Bill". Human Rights Campaign. 12 February 2019. Retrieved 2019-02-13.
52. Raza-Sheikh, Zoya (11 March 2021). "Mississippi and South Dakota pass bills targeting trans youth". Gay Times.
53. "House Bill 1217". sdlegislature.gov.
54. Villarreal, Daniel (March 20, 2021). "South Dakota's Republican governor refuses to sign bill banning trans athletes from sports". LGBTQ Nation.
55. Santoscoy, Carlos (March 22, 2021). "South Dakota Governor Kristi Nowm Won't Sign Transgender Sports Bill". On Top Magazine.
56. Browning, Bill (March 25, 2021). "Republican governor discovers evangelicals invented cancel culture when they come for her". LGBTQ Nation.
57. "Movement Advancement Project | Bans on Transgender Youth Participation in Sports".
58. "South Dakota's governor issues executive orders banning transgender athletes from women's sports". 30 March 2021.
59. "South Dakota Senate Becomes First Chamber to Pass Anti-Trans Legislation in 2022". 19 January 2022.
60. "South Dakota Advances First Anti-Trans Bill of 2022 to Governor's Desk as Noem's Chief of Staff Likens Transgender Kids to Terrorists". February 2022.
61. "South Dakota passes two horrifying anti-trans bills in one fell swoop". 2 February 2022.
62. "South Dakota signs 1st anti-transgender sports law of 2022". ABC News .
63. "Gov. Kristi Noem says she's "grateful" to sign the first anti-trans law of 2022". 4 February 2022.
64. Public opinion on gay and lesbian people by state: South Dakota. PRRI – American Values Atlas.
65. Baldor, Lolita; Miller, Zeke (January 25, 2021). "Biden reverses Trump ban on transgender people in military". Associated Press.
66. "Medical Conditions That Can Keep You From Joining the Military". Military.com. 10 May 2021.
67. McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.