LGBT rights in South Dakota

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.[8] 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.[9] 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 She found Baker is no longer valid precedent and that Bruning did not address due process or the question of a fundamental right to marry.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.[10] 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.[11] 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.[12] Two days later, they requested an expedited response to that request.[13]

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.[14] 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."[15][16] But some reports said he indicated that local officials would determine whether or how soon to issue marriage licenses to same-sex couples.[17][18]

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.[31][32][33]

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.[37]

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.[38][39][40][41] 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.[42]

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".[42]

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),[43][44] 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.[45][46] At that time, similar legislative efforts were underway in Florida, South Carolina, Colorado, Oklahoma and Missouri.[47]

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.[48]

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.[49][50] 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."

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.[51][52] 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.[53][54][55] The Governor did however sign an executive order on banning transgender individuals within female sports.[56] The ACLU has threatened a lawsuit in federal court.[57]

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.[58] 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.[59][60]

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.[61][62]