“Regulating how a school system, students and employees interact with and treat one another is a fundamental component of supervising a school system,” wrote Herring in a letter to gay state Sen. Adam Ebbin (D-Alexandria) who had requested the attorney general clarify the issue. “A policy that allows some students or some employees to be treated differently from others necessarily implicates the welfare of students and supervision of personnel.”
“These are areas that the Constitution of Virginia unquestionably empowers school boards to regulate,” added the attorney general. “Thus, the authority to prohibit discrimination, including discrimination based on sexual orientation or gender identity, is a power fairly or necessarily implied from the constitutional duty to supervise the schools.”
Herring’s opinion overturns then-Attorney General Jerry Kilgore’s 2002 assertion that Virginia school boards do not have the authority to add LGBT-specific provisions to their non-discrimination policies, unless members of the General Assembly were to pass a law allowing them to do so.
Kilgore issued his opinion in response to the Fairfax County School Board’s decision to add sexual orientation to its non-discrimination policy.
“I thought it was time to revisit the issue,” Ebbin told the Washington Blade on Thursday.
James Parrish, executive director of Equality Virginia, a statewide LGBT advocacy group, applauded Herring’s opinion.
“School boards across the commonwealth now have the freedom to create and implement inclusive policies that align with the non-discrimination policies already in place at the majority of Virginia’s leading employers,” said Parrish in a statement. “Employees should be judged on their qualifications, experience, and the job they do — nothing more and nothing less.”
Virginia does not include sexual orientation or gender identity in its statewide anti-discrimination or hate crimes law.
The Gloucester County School Board in December approved a controversial policy that requires students to use restrooms and locker rooms that correspond to their “biological genders.”
The American Civil Liberties Union and the ACLU of Virginia later filed a complaint with the Educational Opportunities Section of the Justice Department’s Civil Rights Division on behalf of Gavin Grimm, a transgender student at Gloucester County High School. The groups allege the policy violates Title IX that prohibits schools that receive federal funds from discriminating on the basis of sex.