South Dakota LGBT Laws

Consensual sex between same-sex couples is lawful at sixteen (16) years.

South Dakota Codified Laws Title 22 Crimes, Chapter 22 Sex Offences [L1.1]

22-22-7. Sexual contact with child under sixteen — Felony or misdemeanor

Any person, sixteen years of age or older, who knowingly engages in sexual contact with another person, other than that person’s spouse if the other person is under the age of sixteen years is guilty of a Class 3 felony. If the actor is less than three years older than the other person, the actor is guilty of a Class 1 misdemeanor. If an adult has a previous conviction for a felony violation of this section, any subsequent felony conviction for a violation under this section, is a Class 2 felony. Notwithstanding § 23A-42-2, a charge brought pursuant to this section may be commenced at any time before the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.

No State or municipal authorities are known to offer domestic partner benefits

In 2002, Citibank and Gateway and some other South Dakota companies reportedly offered benefits to domestic partners [R1.1].

On 19 February 2019, the State Supreme Court ruled 3-0 (2 disqualified) against retired police official Debra Lee Anderson seeking state retirement system survivor benefits after her wife Deborah Cady, a former police captain who died of cancer, because they were not married before Cady retired in 2012 and State Consolidated Law 3-12-94 only allows for a state employee’s survivor benefits to go to a surviving spouse [C2.4], [R2.3].

On 08 January 2019, it was reported that Rapid City officer Debra Anderson is seeking an order from the State Supreme Court to allow her to collect state retirement system survivor benefits after her wife, a former police captain, died of cancer. The 64-year-old Anderson was denied benefits because she and former Captain Deb Cady weren’t married becayse it was not lawful at the time [R2.2].

On 14 March 2011, Judge Bill Srstka signed petitions giving two Sioux Falls women who were legally married in Iowa the right to use their married names in their home state – after the Department of Public Safety refused to issue them driver’s licenses in their married names. In February, Judge Steven Jensen granted a similar petition to Amy Stabe from North Sioux City [R2.1].

Sexual orientation is not included in state discrimination codes [R1.1].

The section of the state code dealing with human rights does not mention sexual orientation among unfair discriminatory practices [R1.1].

On 19 February 2019, the State Supreme Court ruled 3-0 (2 disqualified) against retired police official Debra Lee Anderson seeking state retirement system survivor benefits after her wife Deborah Cady, a former police captain who died of cancer, because they were not married before Cady retired in 2012 and State Consolidated Law 3-12-94 only allows for a state employee’s survivor benefits to go to a surviving spouse [C1.3], [R1.2].

On 08 January 2019, it was reported that Rapid City officer Debra Anderson is seeking an order from the State Supreme Court to allow her to collect state retirement system survivor benefits after her wife, a former police captain, died of cancer. The 64-year-old Anderson was denied benefits because she and former Captain Deb Cady weren’t married becayse it was not lawful at the time [R1.1].

On 12 February 2019, the House of Representatives passed 39-30 House Bill 1108 that were it to become law would effectively bars instructors who teach grades K-7 in the state’s public schools from instructing students on gender identity or gender expression. On 13 February 2019, the Bill moved to the Senate [R1.4].

On 24 January 2019, lawmakers in the state Senate scuttled Bill SB-49 in a 5-2 vote. The Bill would have required transgender students to participate in high-school athletics based on the gender they were assigned at birth however, on 30 January 2019, a similar Bill HB 1225 was introduced. Further, on 25 January 2019, Bill HB 1108 was introduced that would prohibit the discussion of ”gender identity” and ”gender expression” in kindergarten through seventh-grade classrooms [R1.3].

On 01 March 2016, Gov. Dennis Daugaard vetoed bill HB 1008 that would have banned transgender students from using bathrooms and locker rooms that correspond with their gender identity [R1.2].

On 16 February 2016, the Senate passed 20-15 House Bill 1008. If signed into law Governor Dennis Daugaard it would ban transgender students from using restrooms and single-sex facilities that correspond with their gender identity [R1.1]

Under South Dakota state law, each count of intentionally spreading HIV is a felony punishable by up to 15 years in prison and/or a $15,000 fine [L1.5], [R1.4].

It is a defence that the accused partners knew, on the balance of probabilities, the accused had HIV and agreed to consensual sexual acts [R1.3].

In 2002, it was alleged that the law was unconstitutional [R1.2].

In March 2003, the legislature passed a bill that would allow the state health department to release otherwise confidential HIV records to prosecutors who are investigating people for intentionally exposing others to HIV [R1.1].

In 1977, consensual sex between same sex couples became lawful [R1.1] with the repeal of § 22–22–21 of the South Dakota Codified Laws.

South Dakota Constitution Article 21 Miscellaneous [L1.3]

§9 . Marriage.

Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota.

South Dakota Code Title 25 Domestic Relations, Chapter 25–1 Validity and Performance of Marriages [L1.2].

25-1-38. Validity of marriages contracted outside state — Same-sex marriages excluded. Any marriage contracted outside the jurisdiction of this state, except a marriage contracted between two persons of the same gender, which is valid by the laws of the jurisdiction in which such marriage was contracted, is valid in this state.

On 07 November 2006, the voters approved an amendment to the constitution making same-sex marriage unlawful [L1.3].

In 2000, the law was amended to say that same-sex marriages performed in other states wouldn’t be recognized [R1.1].

In 1996, the state legislature passed a law that said a legal marriage happens between a man and a woman [R1.1].

On 11 August 2015, the United States Court of Appeals for the Eighth Circuit formally affirmed lower court rulings striking down as unconstitutional the now-negated ban on gay marriage and civil unions in Arkansas, Nebraska and South Dakota [C2.9], [R2.8].

On 29 April 2015, the Eighth Circuit Court of Appeals cancelled oral arguments in challenges to same-sex marriage bans from Arkansas, Nebraska, South Dakota, and Missouri until after the US Supreme Court issues its decision in Obergefell v. Hodges [C2.7], [R2.6].

On 12 January 2015, US District Judge Karen E Schreier granted a motion for summary judgment finding the State law banning same-sex marriage violates the fundamental right to marry without sufficient justification. A separate judgment will be entered and the effects of that judgment will be stayed until the judgment is final [C2.5], [R2.4].

On 22 May 2014, a complaint was filed in US District Court of South Dakota on behalf of six same sex couples, challenging the State’s ban on same-sex marriage [C2.3], [R2.2].

On 25 April 2014, Nancy Robrahn and Jennie Rosenkranz, together for 27 years and who have four children and six grandchildren planned to marry in Minneapolis, Minnesota then return home and join two other couples in filing a federal court lawsuit challenging South Dakota’s 2006 constitutional same-sex marriage ban [R2.1].

On 10 March 2017, Governor Dennis Daugaard signed Senate Bill 149 (An Act to provide certain protections to faith-based or religious child-placement agencies). The new law prohibits the state from taking adverse action against child placement agencies that discriminate against LGBT families, including the elimination of tax-exemptions, the imposition of fines, the cancelation of contracts or discrimination against the agency in a state benefit program [R1.2].

On 22 February 2017, the full Senate passed 22-12 Bill SB149 which would legalise discrimination against LGBTI persons by faith-based or religious child-placement based on religious grounds. On 02 March 2017 the House of Representatives voted 43-20 to pass an amended Bill expected now to return to the Senate [R1.1].