Last week, Virginia’s attorney general, Kenneth Cuccinelli, wrote to Virginia’s college presidents and officials recommending that they rescind all anti-discrimination policies concerning “sexual orientation,” “gender identity” and “gender expression,” stating that, by enacting such policies, he thought they had overstepped their legal authority.
From On Top Magazine:
In a letter written to the schools, Ken Cuccinelli II, a Republican who took office in January, suggested the policies were illegal.
“It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college of university from including ‘sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly,” Cuccinelli said in his letter.
And he advised the schools should “take appropriate actions to bring their policies in conformance with the law and public policy of Virginia.”
Dated March 4, the attorney general’s four-page letter concludes by saying that, should such policies be allowed to remain, a “litany of instances” would occur whereby other regulations would have to be changed to accommodate these “invalid policies.” This is quietly forgetting, of course, that the schools have been operating under such policies for quite some time and no such “litany” of clashes has emerged. You can read the letter by going here.
As fellow blogger Tracy Viselli mentioned a few weeks ago, Virginia’s governor Bob McDonnell recently refused to renew protections for gay and lesbian state workers by omitting them in his February 5 executive order.
Virginia’s leading LGBT advocacy group, Equality Virginia, reacted strongly to this most recent onslaught on LGBT protections, saying that all of Virginia’s top public schools have such protections and that rescinding them now would have wide reaching implications.
From the Equality Virginia website:
“Attorney General Cuccinelli clearly doesn’t understand that his radical actions are putting Virginia at risk of losing both top students and faculty, and discouraging prospective ones from coming here,” commented Jon Blair, Chief Executive Officer of Equality Virginia.
“They call it legal advice for a reason. I urge the university boards to get a second opinion before they take action that will adversely affect their ability to attract and retain the best and the brightest students,” added Claire Guthrie Gastanaga, who serves as EV’s General Counsel.
“It is time that Governor McDonnell come out from hiding and rein in Mr. Cuccinelli before his embarrassing and regressive actions permanently damage the reputation, educational system and competitiveness of our great Commonwealth. It is the least we can expect from a Governor who supposedly opposes discrimination,” Blair stated.
Governor McDonnell this week indicated that Virginia will not move against colleges and schools that do not comply with Cuccinelli’s opinion, and thereby appeared to undermine Cuccinelli’s actions. However, he stopped short of saying that the legal basis of the opinion was suspect.
J. Tucker Martin, a spokesman for the governor, started by firmly supporting Cuccinelli’s recommendations, saying that they were “consistent with all prior opinions from the office of the attorney general over the last 25 years on the subject,” but then went on to say that “the governor will appoint board members based solely on their ability and on their strong commitment to educational excellence in Virginia. The governor expects that no Virginia college or University, or any other state agency, will engage in discrimination of any kind.”
It’s noteworthy that there’s no explicit instruction here saying that colleges should disregard this missive, only that they should not engage in discrimination. As such, McDonnell has really sidestepped the issue anti-LGBT discrimination in schools, something which is unsurprising but deeply disappointing.
However, the fact that McDonnell has replied at all does says something. It likely points to the fact that Cuccinelli’s letter does not seem to be an official opinion – it wasn’t called for or solicited – but rather something he has taken it upon himself to release, and as such is premeditated solely by his own apparent anti-gay bias.
Of course, we shouldn’t be surprised by this. During his campaign for attorney general, Cuccinelli reportedly said (emphasis mine):
“My view is that homosexual acts… are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society.”
The notion that this is just the tip of the anti-LGBT iceberg in Virginia seems of real concern, and the fear that there are more radical and regressive orders, opinions and legislation on the way certainly seems a valid worry.
Fortunately, students in Virginia are not allowing this letter to go unchallenged. The Washington Post reports:
More than 3,000 people joined the Facebook page “We Don’t Want Discrimination In Our State Universities And Colleges!” Nearly 1,000 people joined another, started by activists at the College of William and Mary. The University of Virginia group Queer & Allied Activism urged students to protest on Cuccinelli’s Facebook page and on Twitter.
In further developments, the same Washington Post article also reports that, in a statement issued Monday, Governor McDonell said that should the General Assembly pass legislation for a gay inclusive non-discrimination policy he would “consider” it.
A nice sentiment, but the Republican controlled House has repeatedly killed bills calling for sexual orientation inclusive anti-discrimination policies. As such, McDonell’s promise to “consider” this issue is virtually redundant because he knows that such legislation stands little to no chance of reaching his desk until control of the House shifts.
The Richmond-Times Dispatch reports that Virginia Commonwealth University will hold a series of open consultations beginning Tuesday morning whereby faculty, students and staff can discuss Cuccinelli’s letter. It also notes that a student organized rally to protest the letter will be held on Wednesday. For more details, please click here.
If you live in Virginia and wish to support LGBT inclusive anti-discrimination policies, Equality Virginia has a petition you can sign. Click here for more details.
“Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited,“ McDonnell said in his directive.
“Employment discrimination of any kind will not be tolerated by this administration,“ the directive said. “Consistent with state and federal law, and the Virginia and United States Constitutions, I hereby direct that the hiring, promotion, compensation, treatment, discipline, and termination of state employees shall be based on an individual’s job qualifications, merit and performance.
The directive is worth little, however, and carries none of the legal power of an executive order or legislative act. This is something that A.G. Ken Cuccinelli was no doubt aware of when he issued his response, in which he praises McDonnell thus:
“I applaud Gov. McDonnell for the tone he is setting for the commonwealth of Virginia. I will remain in contact with the governor and continue to work with him on issues important to Virginians. I expect Virginia’s state employees to follow all state and federal anti-discrimination laws and will enforce Virginia’s laws to the fullest extent.”
As Cuccinelli already pointed out in his earlier missive though, there is no law prohibiting discrimination on the basis of sexuality or gender identity on Virginia’s books, and further more, there is no federal law banning employment discrimination on those grounds either.
As such, this adds up to little more than hollow damage control. I’ll bring you further updates as this unfolds, meanwhile, protests are still ongoing with more planned for the weekend.
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