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UPDATE: Virginia’s Students Don’t Want LGBT Discrimination – Shame the Attorney General Seems To

UPDATE: Virginia’s Students Don’t Want LGBT Discrimination – Shame the Attorney General Seems To

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.

Take Action!
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.


UPDATE: Perhaps feeling the heat, Gov. McDonnell has issued a “directive” in which he avows that no workplace discrimination should be allowed in Virginia. From the Richmond-Times Dispatch:

“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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This post has been updated. Please see the updates section at the bottom of this post for further details.

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55 comments

+ add your own
11:03PM PST on Jan 24, 2012

Thank you.

8:43PM PDT on Jun 27, 2010

Thanks.

10:01PM PDT on Mar 18, 2010

I see a lot of posts on this site where people who clearly have no legal knowledge or training and yet say that something they don't like is "illegal" or "unconstitutional," and when challenged on what makes that so, they either don't respond or argue, still failing to cite any basis of actual law to back their stance.

Cuccinelli is a state attorney general, presumably with a law degree and appropriate accreditation, and yet he makes this statement on a level of such a moronic layperson as I mentioned above, also without citing any such law or precedent.

Does he mean to say that all the hate crime and job discrimination statutes on the books are illegal? If so, this guy should be disbarred on the spot.

It's nice to see that the Virginia governor finally cited the US Constitution's guarantee of equal protection to American citizens, but that makes Cuccinelli's retort even more repulsive when he indicated that the schools should follow state laws regarding the subject, knowing, no doubt, that no such state laws existed, but even more so, going back to his original statement, absence of a particular law does not make something illegal, and under the Constitution, even if a state law allowed this discrimination, this would be unconstitutional as it would conflict with federal law, so there wouldn't need to be a state law against this discrimination anyway.

11:47AM PDT on Mar 14, 2010

once again, virginia is shown to be a backward, prejudiced state. living in northern virginia does not make me any less ashamed or embarrassed of my state. (for those of you that don't know the area, there is a split personality b/w the north and the rest of the state.)

9:46AM PDT on Mar 14, 2010

Another shameful example of how this country is socially backward. This man is not giving his legal advice based iupon anything constitutional. It's merely his narrow-minded viewpoint of the world expressing itself. The students of Virginia need to loudly protest and get this man out of office.

1:40PM PST on Mar 13, 2010

This is the anniersay March 13/My brother was murdered in a hate crime,Every crime is seneless but hate crimes are probably the most seneless,It happens because someone a complite STRANGER to you,Doesn't like anyone who is DIFFERENT TO THEM???? A different skin colour,a different Race, or religion,or a different SEXUAL ORIENTATION,The newspaper did not say what a good young man my brother was,(Gay young man murdered in downtown toronto)Yes he was gay,Also he was a student in University to be a physician,Thank You for this post.

6:56AM PST on Mar 13, 2010

Let's hope Virginia's LGBT citizens speak out and stand up- come out for your rights! (I'm a hetero citizen of NY, and a proud Pflag member)

5:46AM PST on Mar 13, 2010

read

11:39AM PST on Mar 12, 2010

we also dont want LGBT discrimination ^.^

7:09AM PST on Mar 12, 2010

Great article!

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