From Virginia AG Mark Herring’s office; great work!
In an official opinion issued today at the request of Delegates Dave LaRock and Ken Plum and Senator Tom Garrett, Attorney General Herring concludes 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.
A growing body of federal case law and agency interpretation, including Baldwin v. Foxx in 2015, cases brought by the EEOC in March 2016, and action just yesterday 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. These cases are listed in the opinion on pages 8-9 and 12 and throughout 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.
With respect to Virginia’s other anti-discrimination statutes, a lack of Virginia case law on the question prompts an examination of the persuasive and growing body of federal law concluding that discrimination against LGBT Americans can constitute sex discrimination in many circumstances, and the reasoning behind those decisions. Based on that case law, the opinion concludes that, if presented with the question, a Virginia court would most likely use the same rationale and legal precedents as federal courts to find that discrimination on the basis of sexual orientation or gender identity can constitute sex discrimination if based on gender stereotyping or treating a person unfairly due to gender.
The numerous cases cited throughout the opinion clearly show that the law in this area has rapidly developed in very significant ways, with new, noteworthy developments occurring as recently as yesterday.
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. ”
Also today, the OAG is filing a demurrer—the state-court equivalent of a motion to dismiss—in the mandamus action brought by Del. LaRock in the Richmond Circuit Court in connection with his opinion request on this topic. The demurrer states the clear law that whether and when to issue an opinion is a discretionary act of the Attorney General, and that mandamus is not appropriate to compel a discretionary act. It also reiterates that the OAG never refused to issue the requested opinion, and in fact advised him the work was nder way and that a response was forthcoming.
According to the Human Rights Campaign:
- 20 states currently prohibit discrimination based on sexual orientation and gender identity with respect to private and public sector employment by law or policy
- 7 more, including Virginia, prohibit discrimination in public employment based on sexual orientation and gender identity by law or policy
- 18 states prohibit discrimination based on sexual orientation and gender identity in public accommodation
- 89 percent of Fortune 500 companies prohibit discrimination on the basis of sexual orientation
- 66 percent of Fortune 500 companies prohibit discrimination based on gender identity
According to Equality Virginia, as of 2012:
- 80% of Virginia’s 25 largest private employers have non-discrimination policies that include sexual orientation
- 60% of Virginia’s 25 largest private employers have policies that also include gender identity