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.
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Law regarding same-sex sexual activity
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. 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. The age of consent was later raised to fifteen years.
Recognition of same-sex relationships
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. Similar restrictions appear in the state statutes as well.
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.
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. 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. 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 She found Baker is no longer valid precedent and that Bruning did not address due process or the question of a fundamental right to marry.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. 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. 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. Two days later they requested an expedited response to that request.
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. 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." But some reports said he indicated that local officials would determine whether or how soon to issue marriage licenses to same-sex couples.
Adoption and parenting
South Dakota permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples or on second-parent adoptions.
Discrimination protection
No provision of South Dakota law explicitly addresses discrimination on the bases of sexual orientation or gender identity.
The county of Oglala Lakota prohibits discrimination on the basis of sexual orientation and gender identity, while the county of Minnehaha and the cities of Brookings and Sioux Falls prohibits discrimination on the basis of sexual orientation only.
Senate Bill 149
Hate crime laws
South Dakota's hate crimes law does not address hate crimes based on gender identity or sexual orientation.
Summary table
Source of the article : Wikipedia
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