Archaic maneuver used by Virginia Republicans set to stop LGBTQ progress for two years
The Republican dominated Virginia General Assembly has a reputation for being anti- LGBTQ, however, a new tactic used during the 2016 session could be their most destructive to date.
10 bills, some aiming to support Virginia’s LGBTQ persons and others aiming to push them back, all faced a bizarre procedural move which sent the handful of laws to a kind of legislative graveyard – the State Code Commission.
The Code Commission is composed of a bipartisan group of legislators, and meets during the summer months between legislative sessions to hammer out details of wording in the state code.
“Ninety-five percent or more of what we do is what I’d consider to be non-substantive proposals,” said Del. Greg Habeeb (R-8) who represents Salem and Craig County, and has been a commission member since 2012.
The commission is empowered to make some changes to codified language – it is usually submitted in bulk during a following GA session and approved without comment because it is so banal. But sometimes it does handle policy related issues.
The commission doesn’t have a lot of power. When bills get sent there, they are usually reworded to fit into state code, or they directly deal with language in the code, and the commission’s reports are used to write new legislation which should fit better into current code and makes them easier to adapt in the future.
When the LGBTQ legislation was sent to Code Commission this year, a number of eyebrows were raised.
Claire Guthrie Gastanaga, Executive Director for the Virginia ACLU, compared it to a similar tactic used in the 80′s to bury some HIV/AIDS related legislation lawmakers wanted to ignore. The order was reportedly passed down by the Speaker of the House, William Howell, (R- Fredericksburg and Stafford County.) (A list of bills is available at the bottom of the post.)
“They made a decision about what bills they wanted to put on the floor and they made an architecture to do that,” she told GayRVA. “We’ve been introducing a non-discrimination bill since 2006… They’ve killed the positive bills ever since… they know that the ground is shifting under them, they know they don’t have to appear unreasonable,” she added.
When the bills got sent to the commission, they are essentially deadlocked there. As long as they are “under review,” future legislation that deals with similar issues can be killed because it is “currently being examined by the Code Commission,” this can allow a committee to stop all public hearings on the bills despite protest from lawmakers or the public.
Delegate Habeeb admitted that the sheer number of bills the Code Commission has been burdened with will lead to extended review periods. “We’re a little bit in uncharted waters,” he said, admitting the level of policy-related work they would be doing was highly unusual for the usually mundane work executed by the commission.
He also stressed there wasn’t a law about not acting on bills currently being examined by Code Commission, but he did call the move “historical precedent.” Habeeb added that it could be as much as two years before its work wraps up – and while results may yield legally acceptable versions of legislation, it also gives conservative Republican lawmakers an excuse to bury similar bills until then.
“Every Assembly is free to act as it choses, my guess is there will be some folks in 2017 who will say ‘well let’s wait for the code commission word to be done,’” Habeeb told GayRVA. “Normally we don’t advance a bill if there is a study group in the middle of studying that issue.”
Currently the commission is headed by State Senator John Edwards (D-21, Roanoke), who was fairly adamant that the commission should not be addressing the policy-related tasks like the LGBTQ bills. He said that type of legislation “would go, and should go, to particular substantive committees at the General Assembly.” But, he added, “We need legislation on this, I fully support [bills like equal protections for LGBTQ persons], but the Code Commission sees its charge as to make the code user friendly, logical and to get rid of out-dated language and provisions that are no long applicable.”
Senator Edwards was unavailable for a follow up interview by press time, therefore plans to allow the Code Commission to move forward as Habeeb has outlined are not known although minutes from a commission meetings suggest working groups are being formed, and James Parrish, Executive Director for Equality Virginia, confirmed to GayRVA that he was invited as a stakeholder to participate in discussions around the bills.
“Habeeb was very clear this is going to be a two year process,” said Parrish. “The only thing we could see helpful is if some of the working groups kick out the bills they are addressing because they shouldn’t be in front of the code commission.” Parrish admitted that likely “isn’t going to happen,” but Del. Habeeb promised him that EV would stay involved to do what work they could. While Parrish noted the Code Commission would create a “hiccup for any progress in the House,” he added that others, even some Republican lawmakers, have suggested the commission getting involved may lead to progress by forcing language changes in gender and spousal references.
Legislation submitted by Senator Adam Ebbin, (D-Alexandria) during the 2015 GA session dealt specifically with updating the code to address changes in marriage laws and broader gender references throughout the code.
“The code commission, I’m confident, is going to do a thorough review the many instances in the Virginia Code of terms relating to husband and wife… whether the be in inheritance, adoption, divorce, etc.,” Ebbin said. Gender neutral and spousal language updates in the code is an issue he’d been trying to get before the commission before and he was glad to see it finally arrive there. But he’s not blind to the steps conservative lawmakers take too to bury other bills.
“It was an excuse for Republicans to not have to vote on them,” he said, implying it might have been a good thing because it meant they didn’t want to go on the record voting against the legislation either. But he also acknowledged the frustration associated with having these important issues sitting on the shelf.
“We’d like these bills dealt with on their merits and records,” he said. “It’s depressing, but we’re moving forward and we will prevail eventually, it’s just a question of when- this session, the session after, or after redistricting. But we’re not going to stop because of the Code Commission.”
Ebbin mentioned one bill in particular which he felt didn’t belong in the hands of the Code Commission – a measure to criminalize the use of ex-gay therapy on minors.
The legislation’s author, Del. Patrick Hope (D- Arlington County), told GayRVA that “[Conversion therapy] is a policy more than anything else and that this would be unusual to see within their purview,” adding he was very was concerned about the future of his legislation now that it was in the hands of the commission.
Hope’s fight against conversion therapy has been a long standing effort, with more energy and force behind the bill each session. This past session saw three ex-gay survivors speak before the subcommittee, two of which traveled long distances to make hearings. He’s worried that if his bill doesn’t make it out of the Code Commission before the new 2017 session starts, his witnesses will lose the chance to tell their stories again.
A Code Commission hold can silence groups from telling their stories in front of lawmakers.
“We have very compelling stories and witnesses to talk about a real problem that needs to be addressed,” Hope said. “If a committee isn’t even going to give them time to redress, then I think I need to know that in advance.”
Yet another lawmaker, Del. David J. Toscano (D-57) was among those who had a bill sent to the commission and he gave an impassioned speech before the full House General Laws committee which gave some insight into the maneuver being used.
“A long time ago we had number of bills like this dealing with racial discrimination and it took a long time for people to understand that this was a problem that we had to deal with and eventually we dealt with it,” he noted in his speech. It too fell on deaf ears. And now the future of some of the most important LGBTQ-related legislation rests in the hands of an out-of-session committee with self-imposed deadlines and little reason to rush the process unless the public speaks up.
A list of LGBTQ-related bills sent to the Code Commission during the 2016 Session:
HB 179 – Kory – Virginia Human Rights Act; prohibits discrimination in employment.
HB 300 – Simon – Virginia Fair Housing Law; unlawful discrimination, definition of sexual orientation, etc.
HB 77 – Marshall, R.G. – Sex or gender discrimination; applicable federal law.
HB 397 – LaRock – Discrimination; specification of certain terms relating to sex or gender.
HB 427 – Hope – Conversion therapy; prohibited, no state funds shall be expended for purpose of therapy.
HB 429 – Villanueva – Virginia Human Rights Act; public employment, prohibited discrimination.
HB 913 – Toscano – Discrimination; prohibited in employment and housing.
HB 1005 – Levine – VA Human Rights Act; public employment, public accommodation, & housing, prohibited discrimination.
SB 12 – Ebbin – Public employment; prohibited discrimination based on sexual orientation or gender identity.
SB 67 – Wexton – Virginia Fair Housing Law; unlawful discriminatory housing practices, sexual orientation, etc.
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