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Is Sexual Orientation a Protected Status in South Dakota?

Senator Ernie R-Otten withdrew his anti-civil rights Senate Bill 67 under the interpretation that South Dakota law already allows discrimination against same-sex couples. Senator Otten's position hinges on how we read SDCL 20-13-1, the definitions of our state civil rights code:

(16) "Unfair or discriminatory practice," any act or attempted act which because of race, color, creed, religion, sex, ancestry, disability, or national origin accords unequal treatment or separation or segregation of any person, or denies, prevents, limits, or otherwise adversely affects, or if accomplished would deny, prevent, limit, or otherwise adversely affect, the benefit or enjoyment by any person of employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services.

SDCL 20-13-1 mentions sex, but not sexual orientation. Does that mean South Dakota employers can refuse to hire homosexuals?

The U.S. Equal Employment Opportunity Commission says no:

The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011) [EEOC, "Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status," downloaded 2014.01.31].

Executive Order 13087 from 1998 added "sexual orientation" to Executive Order 11478 from 1969 (Clinton and Nixon—liberals!) on equal employment opportunity in the feederal government. But EEOC's interpretation of "sex" includes "sexual orientiation," suggesting precedent under which a South Dakotan of something other than heterosexuality could press a workplace discrimination case against a boss who fires her/him for holding hands with someone other than whom God intended (sorry: I'm trying to think like Ernie Otten).

That interpretation and executive order are among the federal rules against which Senator Phil Jensen's Senate Bill 128 rebels. Read the second paragraph of Section 2:

No private business may be compelled to employ a person based on sexual orientation. The Legislature finds that any federal recognition of any specific sexual orientation as a protected class does not apply in South Dakota and may not be enforced within the geographical boundaries of South Dakota.

Note that the wording of Senate Bill 128 does open the door for gay bosses to fire straight workers just for being straight. Do you really want to go there, Senator Jensen?

But the EEOC's interpretation of "sex" to include "sexual orientation" raises an important legal question: even if we want South Dakota to be America's homophobe mecca, do we need Senate Bill 128 to practice what the "Fear the Gay!" caucus of the South Dakota Legislature preaches? Does South Dakota civil rights law already exclude sexual orientation from protection, or does the EEOC interpretation of "sex" provide our GLBT neighbors the equal status they deserve?


  1. Nick Nemec 2014.01.31

    It's worth a court case to find out.

  2. Jenny 2014.01.31

    Cory or Nick, is there a good chance of this anti-gay, anti-civil rights SB128 bill actually passing?

  3. Steve Hickey 2014.01.31

    Nick, your comment proves that SB 66 was not prematurely or unnecessary.

  4. Jenny 2014.01.31

    Hello Pastor Hickey, would you like to sign my boycott SD petition?

  5. Nick Nemec 2014.01.31

    I disagree Pastor Hickey. SB66 was the bill that addressed you being forced to officiate at a marriage between two gay people. You are already protected on that front. If your religion prevents you from conferring some sacrament on some person you can't be forced to confer it. You are protected by the First Amendment. That is far different than a businessperson denying service to someone because some perfectly legal activity they are involved in is contrary to the businessperson's religious beliefs.

  6. Nick Nemec 2014.01.31

    Jenny, I doubt SB128 will pass but I'm not going to let it out of my sight. If it passes the Legislature I bet Gov. DD would veto it as he doesn't want to draw that kind of negative out of state attention to his race for re-election. Signing a blatantly unconstitutional bill would be fool hardy, and it's blatantly unconstitutional on several fronts, not the least of which is the nullification issue.

  7. Loren 2014.01.31

    One of these days I am just going to pack up my bags and move to a more progressive state like MISSISSIPPI! :>(

  8. Rick 2014.01.31

    Loren, if you go, please take Steve Hickey with you. Thanks!

  9. Roger Cornelius 2014.01.31


    Might the governor sign SB128 as a political distraction of GOED/NBP?

  10. Roger Cornelius 2014.01.31

    Last year in Rapid City a transgender lawsuit was settled for $50.000 based on gender discrimination.

    Cori McCreery was fired from her job of 5 years by Don's Valley Market when she informed her employer that she would be under going transgender surgery from male to female. Don's contended was based on that she made other employees and customers "uncomfortable".
    McCreery won the lawsuit with the help of the EEOC based on the Civil Rights Act, Title VII.
    This case was based on employment discrimination, however it could possibly be used for the denial of service according to some attorneys.
    Is this one of those frivolous lawsuits Hickey and Republicans would like to legislate against?

  11. interested party 2014.01.31

    Howie land, Roger: exactly why this bill was drafted. Like wiping with a hula hoop: it's endless.

  12. Anne Beal 2014.01.31

    It would have made more sense to draft legislation protecting all of us from frivolous lawsuits filed by professional victims. It would be one thing if liability for a civil rights violation were limited to a fine but as things stand now an accusation of discrimination can be worth thousands of dollars to somebody just because his feelings were hurt, what damages does anybody really suffer if the baker of your choice doesn't want to bake you a cake? Unless you are a bridezilla who is convinced such a slight will ruin the most important day in the history of mankind, you have not been damaged. You just need to find somebody else to bake your cake. The whole sexual orientation thing was dumb. It should have been called the Bridezilla bill. Tort reform requiring losers to pay all the legal costs would've been a start in the right direction, because current practices make an out of court settlement less expensive than fighting a frivolous lawsuit. So that when Bridezilla tries to sue because the cake had blue flowers on it and. She wanted purple and it ruined the whole wedding and she wants a million dollars in compensation because she sobbed uncontrollably during the entire honeymoon, the poor bakery doesn't owe her anything except maybe another cake smashed in her face.

  13. Roger Cornelius 2014.01.31

    Ann Beal is a professional victim too, she is a victim of white privilege and what is represents in South Dakota. Thinking that if they have never had the experience of discrimination it doesn't exist or can just be explained away.

    When people are discriminated against for any reason, It Is Against The Law and people need to prosecuted or taken to court and to be held accountable for their actions and their demonstrations of hate.

    This isn't about cakes or what Ann Beal thinks are frivolous lawsuits, it is about justice for true victims of hate. Ann may dislike the idea of those "frivolous" lawsuits, but they are on the rise. Today in Washington state it took a court order for 5th grade transgender student to use the girls bathroom

    Unfortunately for Ann, she is on the wrong side of history, change is coming one frivolous lawsuit after another.

  14. Bree S. 2014.02.01

    Actually, Anne made perfect sense that time.

  15. Rick 2014.02.01

    Roger nailed it! Excellent response to the 'frivolous lawsuits' feel good monent spin.

  16. Roger Cornelius 2014.02.01


    The "frivolous" lawsuits will continue until those that practice hatred understand that discrimination is illegal. The more the merrier.

    Where I do find some agreement with Ann on the penalties, she wants to fine culprits and move on, I would prefer making discrimination a criminal action with both a fine and jail time.

  17. Douglas Wiken 2014.02.01

    Professional victims and whiners arise. You have nothing to lose but your claims.

  18. Les 2014.02.01

    You and Janklow, Roger. Fill the pens. Maybe even for smoking a little weed.

  19. Deb Geelsdottir/ 2014.02.02

    Good response Roger. The penalties need to be whatever is strong enough to stop discrimination.

  20. Vickie 2014.02.02

    Discrimination is not only dumb,but it's pure hatred for no reason.

  21. Lynn G. 2014.02.02

    I think Sid made an excellent point in another posting. Is this all just a diversion in getting everyone all riled up with such a controversial subject so it can deflect from what the legislature should really be doing such as EB-5 , education and other very important issues and challenges for our state?

    It reminds me when Bush #1 and Dukakis ran for president and instead of talking about the real issues that faced the country like our Federal debt we had the Republicans and media focused on the issue whether it was legal to burn the US Flag. I was so frustrated at the time and knew what they were doing.

    Bait and Switch!

  22. Les 2014.02.02

    Yes, Vickie. Lock up all haters and start or finish with the inner city. Can't have bigotry in any form. What's this you say, you hate the haters?
    "They just all need to die anyway." Oprah
    In all of my business's hating a customer would soon put you out of biz in a very natural way.

  23. Les 2014.02.02

    Whether or not this is a diversion Lynn, there darn sure are diversions happening if there is fraud.

  24. Lynn G. 2014.02.02

    Les sorry but your way off the mark with where you think I'm going with this. lol I'm not into hating the "haters". I just think there are more important issues to be dealt with than these sideshows.

  25. Les 2014.02.02

    That is wonderful Lynn! I don't think we accomplish much by increasing hate and agree, we are tools to be manipulated by the ever changing winds of corruption in and out of government.

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