South Dakota LGBT Laws

Age of Consent Legislation/Cases/References
1. State

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.

L1.1 South Dakota Codified Laws: 22–22–7 (Accessed 11 JUN 09)
Civil Unions, Partners: Domestic, Registered Legislation/Cases/References
See also: [ESTATES, WILLS] [MARRIAGE]
1. State

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].

2. Courts & Tribunals

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].

R1.1 Sioux Falls Argus Leader: Being Gay in Sioux Falls 12 OCT 02
C2.4 Opinion: Debra Lee Anderson v. South Dakota Retirement System No. 2019 S.D. 11 PDF 118.80kb 20 FEB 19
R2.3 TheWashingtonTimes: South Dakota high court rules against woman in same-sex benefits case 21 FEB 19
R2.2 USnews: Supreme Court to decide same-sex benefits case 08 JAN 19
R2.1 Argus Leader: Judge grants lesbian marriage name change 15 MAR 11
Discrimination Legislation/Cases/References
1. State

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].

R1.1 Sioux Falls Argus Leader: Being Gay in Sioux Falls 12 OCT 02
Estates, Inheritance, Probate, Succession, Wills Legislation/Cases/References
1. Courts & Tribunals

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].

C1.3 Opinion: Debra Lee Anderson v. South Dakota Retirement System No. 2019 S.D. 11 PDF 118.80kb 20 FEB 19
R1.2 TheWashingtonTimes: South Dakota high court rules against woman in same-sex benefits case 21 FEB 19
R1.1 USnews: Supreme Court to decide same-sex benefits case 08 JAN 19
Gender Identity, Intersex,
Transgender, Transexual
[?]
Legislation/Cases/References
1. State

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]

R1.4 HumanRightsCampaign: South Dakota House of Representatives Passes Discriminatory Anti-Transgender Bill 12 FEB 19
R1.3 ACLU: The South Dakota Legislature’s Transphobia 07 FEB 19
R1.2 GayTimes: South Dakota governor vetoes anti-transgender bathroom bill 02 MAR 16
R1.1 GayStarNews: South Dakota Senate passes ‘unprecedented and extreme’ anti-trans bill 17 FEB 16
HIV Aids Legislation/Cases/References
1. State

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].

L1.5 South Dakota Codified Laws: § 22–18–31 (Accessed 11 JUN 09)
R1.4 Aberdeen American News: Formal Charges Filed in HIV Cases 08 MAY 02
R1.3 Aberdeen American News: Men Held on HIV Charges Released 09 MAY 02
R1.2 The Advocate: Attorney: South Dakota HIV Exposure Law is Unconstitutional 02 JUL 02
R1.1 The Advocate: South Dakota Senate Approves Bill Allowing Release of HIV Records 06 MAR 03
Homosexuality, Sodomy Legislation/Cases/References
See also: [AGE OF CONSENT]
1. State

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.

R1.1 ILGA: State-Sponsored Homophobia PDF 700.06kb, 13 MAY 09
Marriage Legislation/Cases/References
1. State

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].

2. Courts & Tribunals

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].

L1.3 South Dakota Constitution: Section 9 Approved 07 NOV 2006
L1.2 South Dakota Codified Laws: Section 25–1–8 (Accessed 11 JUN 09)
R1.1 Sioux Falls Argus Leader: Being Gay in Sioux Falls 12 OCT 02
C2.9 Nebraska Opinion: Susan Waters, et al v. Pete Ricketts No. 15-1452 PDF 74.33kb, 11 AUG 15
R2.8 TimesUnion: Appeals court affirms striking of Nebraska gay marriage ban (also in Arkansas and South Dakota) 11 AUG 15
>C2.7 Order: Kyle Lawson, et al. v. Robert T Kelley, State of Missouri No. 14-3779 PDF 22.12kb, 29 APR 15
R2.6 EqualityOnTrial: Eighth Circuit cancels oral argument in marriage cases 30 APR 15
C2.5 Order: Jenny Rosenbrahn, et al., v. Dennis Daugaard, et al. No. 4:14-cv-04081 PDF 216.70kb, 12 JAN 15
R2.4 EqualityOnTrial: South Dakota same-sex marriage ban struck down 12 JAN 15
C2.3 Complaint: Jenny and Nancy Rosenbrahn, et al v. Dennis Daugaard et al No: 4:14-cv-04081-KES PDF 2.53MB, 22 MAY 14
R2.2 EqualityInTrial: Federal challenge to South Dakota’s same-sex marriage ban filed 22 MAY 14
R2.1 GayStarNews: South Dakota couple, together 27 years, to challenge their state’s gay marriage ban 25 APR 14
Parenting, Adoption, Fostering Legislation/Cases/References
1. State

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].

R1.2 WashingtonBlade: South Dakota governor signs first anti-LGBT law of 2017 10 MAR 17
R1.1 PinkNews: South Dakota Senate passes bill to legalise anti-LGBT discrimination in adoption 23 FEB 17