Virginia Delegates respond to AG Herring’s LGBTQ discrimination opinion and conflict over the results
At the request of several elected officials, Virginia Attorney General Mark Herring has released a new legal opinion answering whether or not LGBTQ individuals are currently protected under state law. While Herring believes they are, at least one of the delegates named in the opinion has a differing view and believes the 19 page report actually supports their view.
“A growing body of federal case law and agency interpretation and action just [earlier this week] by the Department of Justice, is making it clearer that discrimination based on sexual orientation or gender identity can constitute illegal sex discrimination under existing federal law—including Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972—when the claim is discrimination based on “gender stereotyping” or when a person is treated unfairly because of their gender,” wrote Herring in a release sent out yesterday morning.
But Delegate Dave LaRock (top image, left), R-33 in Hamilton, VA, disagrees.
LaRock noted in an interview with GayRVA that the Virginia Human Rights Act includes a myriad of classes including sex, but not specifically sexual orientation or gender identity, meaning they lack the same protections. “My presumption would be that that would reflect the originally intended meaning of ‘sex’ which would not include sexual orientation and gender identity.”
Del. LaRock said he requested the opinion after Sen. Adam Ebbin asked for an opinion on whether or not Fairfax County Public Schools could protect LGBTQ employees and students. Herring said they could, so LaRock proposed legislation which would strip the school board from being able to do so. His bill failed along side most other pro and anti-LGBTQ legislation this session, but now about 1/4 of Virginia’s LGBTQ students and teachers are protected.
LaRock said the evidence provided by Herring, including such court decisions as Price Waterhouse v Hopkins, where the US Supreme Court found a Title VII violation for a woman who was denied entry into an accounting firm because she did not conform with traditional gender stereotypes, were all handled outside of Virginia courts and therefore did not reflect state law.
“When you look for the meat that supports those opinions, it just isn’t there,” he said, stressing Herring’s opinion was just that, a legal opinion, and not regulation or law. “I think he’s drawing conclusions that I don’t agree with.”
Another example where LaRock think’s Herring faltered was with his use of an EEOC (Equal Employment Opportunity Comission) ruling which found in favor of a South Dakota transgender woman who believed she was terminated after transitioning at work. The EEOC handles civil complaints and technically does not count as legal precedent in broader court cases, however that ruling did show a shift on the issue of transgender rights from a federal body.
“[The EEOC] doesn’t have the force of the law. It certainly wasn’t generated by an act of Congress, and I don’t think it qualifies as a regulation,” LaRock said. “It would be a policy decision and courts would look at it as that. It reflects the view point of the administration.”
But higher courts which dictate Virginia have shown sympathy for transgender issues as well. Late last month the Fourth Circuit ruled the lawsuit of Gavin Grimm, a Gloucester County Public Schools student who is currently fighting their non-inclusive bathroom policy, could continue – something some legal experts have interpreted as a win for the issue.
“It’s a long way from saying they agree,” LaRock said. “But they didn’t reject the idea all together.”
Still, in the context of Virginia’s history with civil rights, with precedent set on topics like interracial marriage from Loving v. Virginia, LaRock doesn’t think he’s on the wrong side of history on this issue.
“The argument that a chosen lifestyle of homosexuality can be analogous to a physical attribute like race. I’d disagree with that,” he said. “I don’t think its fair that we should pick out a group of people who have a chosen lifestyle and give them special preference under the law.”
The Delegate went on to say he doesn’t support any kind of expanded protections for LGBTQ Virginians, and compared being a sexual minority to being the fan of a specific sports team.
“I’m a Redskins fan and my boss might be a Steelers fan,” he said. “I don’t think I should be given special protection or preference in the law so he can’t fire me because I’m a Redskins fan,” he said admitting the analogy was “silly.” ”But there are many personal choices that would be no more appropriate to incorporate into nondiscrimination policies than sexual orientation… it’s just not valid.”
LaRock’s outlook on the issue isn’t the only one, nor was he the only name listed on the request for the Opinion.
Del. Ken Plum (top image, right), D-36 near Reston, has been a long time advocate for LGBTQ equality at the General Assembly. He’s worked across party lines with Del. Villanueva (R-21) to expand protections for LGBTQ state employees.
“It’s part of a whole spectrum of human rights,” said Plum in an interview with GayRVA. “I was involved in the 60′s in Civil rights efforts, so for me, it’s a natural evolution of recognition that, under the law, we are all humans and we all have natural rights and that issues related to color of our skin, sexual orientation, gender identity, any of those factors don’t take that away.”
Plum said he was reassured by Herring’s opinion, something he had discussed with the AG a few times in the past. He’d asked for the AG’s opinion on the issue about six months after a constituent had mentioned it in passing. He’s pleased with the results to say the least.
“We now are in a position where we can say that this discrimination is against the law in Virginia as it is in federal law and that’s a step forward for us,” he said.”
“What’s unfortunate about this rescission (of policy) is that it sends a message to transgender students that the administration doesn’t respect them, does not have their backs.”March 7, 2017
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