Herring wrote in a 19-page letter to state Dels. David La Rock (R-Loudoun County) and Ken Plum (D-Fairfax County) and state Sen. Thomas Garrett (R-Buckingham County) that the Virginia Human Rights Act’s provision banning discrimination based on sex protects LGBT Virginians.
The three lawmakers had asked Herring how Virginia laws banning discrimination based on sex define sexual orientation and gender identity.
“For more than a quarter-century, since the General Assembly enacted the Virginia Human Rights Act, it has been our commonwealth’s policy to protect all individuals within the commonwealth from unlawful discrimination on the basis of sex,” wrote Herring. “Numerous other Virginia statutes also prohibit sex-based discrimination in areas such as employment, housing and contracting.”
“I conclude that those statutes most likely prohibit discriminatory conduct against LGBT Virginians when that conduct is based on sex-stereotyping or on treating them less favorably on account of their gender,” he added.
The Virginia Human Rights Act does not specifically include sexual orientation or gender identity.
Then-U.S. Attorney General Eric Holder in 2014 said Title VII of the Civil Rights Act of 1964 — which specifically addresses workplace discrimination — protects transgender people. The Equal Employment Opportunity Commission ruled last summer that discrimination based upon sexual orientation amount to sex discrimination under the statute.
Title IX of the Education Amendments of 1972 bans schools receiving federal funds from discriminating on the basis of sex.
Gavin Grimm, a trans student who attends Gloucester County High School, claims in a federal lawsuit that the Gloucester County School District’s policy banning him from using restrooms and locker rooms consistent with his gender identity violates Title IX.
The Justice Department argued in the Grimm case that Title IX requires school districts to allow trans students to use restrooms consistent with their gender identity. The 4th U.S. Circuit Court of Appeals in Richmond last month ruled in Grimm’s favor.
“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,” said Herring in a statement he released along with his opinion. “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.”
Family Foundation of Virginia President Victoria Cobb sharply criticized Herring.
“It comes as no surprise that, once again, the attorney general has ignored the plain reading and long-established view of the law to come to a politically motivated conclusion,” said Cobb in a statement.
Herring released his opinion a day after U.S. Attorney General Loretta Lynch announced a federal civil rights lawsuit against North Carolina over House Bill 2. The state’s governor, Pat McCrory, on Monday sued the Justice Department in response to an order that his administration stop enforcing the anti-LGBT law.
The 4th Circuit’s ruling in the Grimm case applies to North Carolina because it falls within its jurisdiction.