The legal landscape for LGBTQ+ and Two Spirit South Dakotans is constantly evolving.

If you think you have been discriminated against, contact us and we can help you figure out whether you are protected under federal or state laws.

1. Can an employer discriminate against me because of my sexual orientation or gender identity?

Q.Can an employer discriminate against me because of my sexual orientation or gender identity?
A.

Your rights

  • Employers with 15 or more employees are prohibited by Title VII of the 1964 Civil Rights Act from discriminating on the basis of sex. Some courts have ruled that Title VII also bans discrimination based on sexual orientation or gender identity. The Supreme Court recently announced it will take up this question in three cases. In addition, many states and cities have laws that ban this kind of discrimination.

If you believe that your rights have been violated

  • If you feel that you have experienced discrimination at work, you can file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), which has taken the position that LGBTQ+ and Two Spirit people are protected under Title VII. But it’s possible that the EEOC may change its position on this question during the Trump administration.
  • We encourage you to contact our office for help weighing your options.

Additional resources

2. Can a landlord refuse to rent to me?

Q.Can a landlord refuse to rent to me?
A.

Your rights

  • The federal Fair Housing Act prohibits sex discrimination by most landlords. We believe this should also be interpreted by the courts to protect LGBTQ+ and Two Spirit people. State and local laws where you live may also bar this discrimination.
  • Housing discrimination against people with HIV/AIDS, or people perceived to have HIV/AIDS, is also illegal under the Fair Housing Act’s protections against disability discrimination.
  • Housing providers that receive funding from the Department of Housing and Urban Development (HUD) or have loans insured by the Federal Housing Administration (FHA), as well as lenders insured by FHA, are subject to HUD’s Equal Access Rule, which bans discrimination in HUD programs on the basis of sexual orientation or gender identity.

If you believe your rights have been violated

  • What you can do depends largely on where the discrimination took place, whether any state or local laws there might apply to your situation, and where things stand under the current administration. We encourage you to contact our office for help weighing your options.

Additional resources

3. Am I protected from discrimination in public accommodations, like shops and restaurants?

Q.Am I protected from discrimination in public accommodations, like shops and restaurants?
A.

Your rights

  • There is no federal law that bans discrimination based on sexual orientation or gender identity in public accommodations, like restaurants, theaters and other businesses. However, state and local laws where you live may ban this kind of discrimination.

Additional resources

4. Are LGBTQ+ and Two Spirit people protected from discrimination in schools?

Q.Are LGBTQ+ and Two Spirit people protected from discrimination in schools?
A.

Your rights

  • Title IX of the Education Amendments of 1972 bans discrimination on the basis of sex by public schools, and several federal courts have ruled that Title IX protects LGBTQ students from discrimination or harassment.
  • Federal courts have held that Title IX requires public schools to respond to harassment based on appearance or behavior that doesn’t conform to gender stereotypes: boys who wear makeup, girls who wear pants, or students who are transgender or non-binary. The First Amendment right to free expression can also apply to school dress codes.
  • Your constitutional right to privacy makes it illegal for your school to “out” you to anyone without your permission, even if you’re out to other people at school.
  • The First Amendment protects your right to express yourself in public schools. That includes bringing a same-sex date to prom or any school event.
  • Your right to be yourself in school includes the right to be transgender or transition at school. While the law in this area is evolving, a growing number of courts have found that Title IX and the Constitution protect transgender students’ right to access sex-separated programs and facilities consistent with their gender identity. Some state and local laws also explicitly protect transgender students from discrimination in schools.

If your rights are violated

  • Document everything. Take notes and keep copies of any emails with school administrators relevant school forms, etc.
  • If anyone at school is harassing or threatening you, it’s crucial that you report every incident to a principal or counselor. Usually schools must be put on notice before they can be held legally responsible for protecting you.
  • If you have reported harassment or any other kind of discrimination to your school officials and they have done little or nothing to stop it, we encourage you to contact our office for help weighing your options.

Additional resources

  • If you’ve been discriminated against based on sexual orientation or gender identity, the ACLU may be able to help. Contact us by filling out an intake form.
  • Here are open letters on variety of LGBTQ+ and Two Spirit issues that you can use when advocating for your rights with school administrators.

5. Does the law protect my right to use the restroom consistent with my gender identity?

Q.Does the law protect my right to use the restroom consistent with my gender identity?
A.

Your rights

  • State and local laws that prohibit discrimination based on gender identity or expression should protect transgender people’s right to use restrooms and locker rooms that match their gender identity. We believe that laws that ban sex discrimination should also be interpreted by the courts to protect transgender people. While federal law in this area is uncertain, most courts to address this question have found in favor of transgender people being able to access facilities most consistent with their gender identity.
  • In some places, state and local nondiscrimination laws are much clearer about transgender people’s right to use gender identity-appropriate public restrooms. Many businesses, universities, and other public places are converting their restrooms to all-gender spaces.

How the law varies in different states and cities

  • Some places — for example, states like Colorado, Iowa, Oregon, and Washington, and cities like San Francisco and New York City — specifically grant transgender people the right to use gender identity-appropriate restrooms in public spaces.
  • Other places, like Chicago, continue to allow businesses to decide whether  transgender patron may access men’s or women’s restrooms based on the gender on their ID, which may or may not reflect accurately the person’s gender identity.
  • Some cities — like Austin, Texas, New York City, Philadelphia, and West Hollywood —  require that single-stall public restrooms be labeled as all-gender.

If you believe your rights are violated

  • What you can do depends largely on where the discrimination took place, whether any state or local laws there might apply to your situation, and where things are with federal lawsuits currently in play. We encourage you to contact our office for help weighing your options.

Additional resources