In an official opinion issued today, May 10, the Attorney General of the Commonwealth of Virginia, Mark Herring, has concluded that:
1. To the extent that discrimination based on sexual orientation or gender identity is recognized by federal courts and agencies as impermissible sex discrimination under federal anti-discrimination laws, such conduct would also violate the Virginia Human Rights Act which explicitly makes any violation of federal anti-discrimination law a concurrent violation of state law.
2. With respect to other anti-discrimination measures in Virginia law, the same rationale leading federal courts and agencies to increasingly recognize that, in many circumstances, discrimination against LGBT Americans can constitute impermissible sex discrimination would most likely lead a Virginia court to reach the same conclusion.
This opinion was issued in response to inquiries by Delegates Dave LaRock and Ken Plum and Senator Tom Garrett.
Following the release of the opinion, Equality Virginia’s Executive Director James Parrish said in response: “Equality Virginia praises Attorney General Herring’s thoughtful, comprehensive analysis of current state and federal law that confirms that LGBT Virginians are protected from discrimination based on sex – including sexual orientation and gender identity – under the Virginia Human Rights Act.”
Parrish continued, “Protecting gay and transgender Virginians from discrimination does not require expanding the definition of sex and gender but only that we apply existing federal law to LGBT people. Although these protections are increasingly clear based on federal law and judicial decisions, we will also continue to call on the Virginia legislature to make these protections even more explicit under state law.”
According to a release accompanying the opinion, The Virginia Human Rights Act uniquely makes all violations of federal civil rights law a concurrent violation of state law by stating that “Conduct that violates any Virginia or federal statute or regulation governing discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability shall be an ‘unlawful discriminatory practice’ for the purposes of this chapter.”
Therefore, because federal courts and agencies are regularly finding discrimination based on sexual orientation or gender identity to be illegal sex discrimination, any such conduct that violates relevant federal anti-discrimination laws is a concurrent violation of the Virginia Human Rights Act.
Attorney General Herring issued the following statement regarding the opinion:
“The General Assembly has recognized the right of every Virginian to live, learn, and work without fear of discrimination by enacting the Virginia Human Rights Act and other anti-discrimination statutes.
“The law in this area has developed rapidly and the clear trajectory has been towards a more inclusive understanding of sex discrimination that encompasses discrimination based on sexual orientation and gender identity. This growing body of case law has not required an expansion of the definition of ‘sex’ or ‘gender.’ It has merely required courts to apply well-established prohibitions against sex discrimination and gender stereotyping to LGBT Americans.
“The private sector has been saying clearly for years that it will not tolerate discrimination against LGBT employees, and our nation’s courts are increasingly recognizing that discrimination against LGBT Americans is inconsistent with the language and the very purpose of some of our most important civil rights protections.
“We don’t need to look far to see the division, discord, and pain that can happen when a state tries to enshrine discrimination against certain people it fears or does not understand. In recent years, Virginia has rejected this kind of misguided and sometimes mean-spirited approach. As the courts continue to put away the vestiges of discrimination and unequal treatment, I hope we will continue to show that Virginia rejects discrimination and welcomes all who would call our Commonwealth home.”
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