House Bill 385, which state Del. Bob Marshall (R-Prince William County) introduced on Wednesday, would specifically prohibit “any political subdivision of the commonwealth, including a locality or school board, from enacting an ordinance or adopting a regulation prohibiting discrimination on any basis other than race, color, religion, sex, pregnancy, childbirth or related medical conditions, national origin, age, marital status or disability.”
Virginia’s statewide anti-discrimination law does not include sexual orientation and gender identity.
Attorney General Mark Herring last March said local school boards have the authority under state law to include sexual orientation and gender identity in their anti-discrimination policies. This opinion overturned then-Attorney General Jerry Kilgore’s 2002 assertion that officials cannot add such provisions, unless members of the General Assembly were to pass a law allowing them to do so.
The Virginia Beach School Board last August added sexual orientation and gender identity to the district’s anti-discrimination policy. The Liberty Counsel in December filed a lawsuit that alleges members of the Fairfax County School Board violated Virginia law when they added LGBT-specific protections to the district’s anti-discrimination policy.
Marshall challenges state, federal discrimination mandates
The Equal Employment Opportunity Commission in 2012 ruled that employment discrimination based on gender identity amounts to sex discrimination under federal law. Then-Attorney General Eric Holder in 2014 said Title VII of the Civil Rights Act of 1964 bans workplace discrimination based on gender identity.
Gavin Grimm, a transgender high school student, last year filed a federal lawsuit against the Gloucester County School District over its controversial policy that requires students to use restrooms and other facilities that correspond to their “biological gender.” The Justice Department subsequently filed a brief that says Title IX of the U.S. Education Amendments of 1972 requires school districts to allow trans students to use the restroom that corresponds with their gender identity.
“Based on the actions of the Obama executive agencies in proposing alternate readings of federal civil rights laws; Herring would be correct to conclude that government policies based on sexual orientation would be sex discrimination because current Va. code refers to federal law and regulations, guidelines, as part of the Code of Virginia etc.,” Marshall told the Washington Blade on Friday in an email in which he defended his bill. “In effect the Assembly has turned legislative power over Virginia’s population to unseen operatives in the federal executive departments and agencies. That is not prudent.”
A second bill that Marshall introduced on Thursday would prohibit Virginia from interpreting discrimination based on sexual orientation as sex discrimination.
Gov. Terry McAuliffe shortly after taking office in 2014 issued an executive order that bans discrimination against state employees based on sexual orientation and gender identity. State Sens. Adam Ebbin (D-Alexandria) and A. Donald McEachin (D-Henrico County) have introduced a bill that would codify the mandate into law.
“It is disappointing but not unexpected to see Delegate Marshall attempting to dial back protections for Virginia’s public employees,” James Parrish, executive director of Equality Virginia, a statewide LGBT advocacy group, told the Blade on Friday. “The nondiscrimination policies protecting gay and transgender teachers and employees that school boards such as those in Fairfax County and the city of Virginia Beach implemented are nothing new. In fact, the majority of Fortune 500 companies, including those headquartered in Virginia, have these polices in place.”
Dalia Palchik, a member of the Fairfax County School Board, last November defeated Patty Reed, who voted against the inclusion of gender identity in the district’s anti-discrimination policy.
“It’s unfortunate that a member of the General Assembly, knowing the history of our state and discrimination would actively work against localities doing what they can to support all of our students and our staff against discrimination,” Palchik told the Blade on Friday in response HB 385. “I can’t comment to the motives of the bill, but I do know that it’s important to make sure we’re able to protect our students in every way we can.”
Brian Coy, a spokesperson for McAuliffe, on Friday did not specifically comment on HB 385.
“Generally, the governor opposes discrimination in all forms and believes we need to be focused on enacting polices that make Virginia more open and welcoming to people from all walks of life, not less,” said Coy.