No, Virginia, There Is No Nondiscrimination Policy

News Analysis: Virginia Gov. McDonnell's executive directive on employment discrimination is about appearances, not policy

Over the past month, three differing documents produced by two statewide elected officials in Virginia have led to a whole lot of confusion about where the Commonwealth stands on protection of gay, lesbian, bisexual and transgender people from discrimination.

First, Republican Governor Bob McDonnell issued an executive order relating to ”Equal Opportunity.” The Feb. 5 order noted that ”[t]his order is in furtherance of the stated policy enacted by the General Assembly, and specifically prohibits discrimination on the basis of race, sex, color, national origin, religion, age, political affiliation, or against otherwise qualified persons with disabilities.”

The order did not include sexual orientation, which was included in the previous executive order on the matter, issued by former Democratic Gov. Tim Kaine in 2006.

Then, with the Republican-led General Assembly unwilling to move on nondiscrimination legislation, Attorney General Ken Cuccinelli (R) issued the ”opinion of the Office of the Attorney General” that the ”law and public policy” of Virginia ”prohibit a college or 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’s reasoning was that the public educational institutions in Virginia receive their authority to act from the legislature. As the legislature has ”defined unlawful discrimination” in the Virginia Human Rights Act without including ”sexual orientation” or ”gender identity” – and has ”rejected” adding those terms – Cuccinelli, pointing to earlier A.G. opinions, concluded that colleges and universities could not include those terms in their own policies.

When college and university students, faculty and administrators made clear that they had a problem with Cuccinelli’s letter, McDonnell was quick to make a move distancing himself from the attorney general.

Except, not really.

On Wednesday, March 10, Gov. McDonnell issued an ”Executive Directive” regarding the ”Standard of Conduct” for state supervisors and employees ”Concerning Employment Discrimination.”

In it, he suggests a pronouncement on the state’s position on sexual orientation nondiscrimination. The set-up looks like an attempt to create some space between Cuccinelli’s move as attorney general and his own administration. But it does no such thing. To the extent it mentions sexual orientation, it is simply a basic restatement of federal constitutional law. It fails to mention gender identity or expression at all.

”The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons,” McDonnell writes. ”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.”

This ”directive,” unlike his earlier executive order, did not require the attestation of the Secretary of State. More importantly, it creates no obligations or expectations of the state or its employees other than those that the U.S. Constitution already had placed on them.

Courts scrutinize laws and government actions that classify citizens. The Equal Protection Clause of the Fourteenth Amendment gives the courts this authority. The most basic rule of equal protection is that all laws must bear a ”rational basis” to some ”legitimate government interest.” To understand how low a bar this is, compare that to classifications based on race, which require a showing that the classification is ”narrowly tailored” to a ”compelling interest.”

The ”rational basis” standard cited by McDonnell is not a tough standard to meet, with the U.S. Supreme Court finding that only the most onerous or animus-based laws fail to meet that standard.

The law, by the governor’s own words, is the same on March 11 as it was on March 9. There is no protection provided by the Commonwealth of Virginia or Gov. McDonnell to LGBT people other than the slight protection already provided to them by the U.S. Constitution. And McDonnell has taken no action to ask the legislature to do more.

McDonnell’s letter then, is, nothing more than that famous letter sent from Virginia O’Hanlon to the editor of the New York Sun. The girl asked the editor, ”Please tell me the truth; is there a Santa Claus?”

The editor famously responded: ”Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy.”

In the days since Cuccinelli’s letter, people across Virginia have been asking McDonnell to tell them the truth about his commitment to nondiscrimination. On Wednesday, like the Sun‘s editor, McDonnell gave a saccharine response aimed more at providing pleasant words than it did providing a real answer.

McDonnell’s directive, unfortunately, purports to give comfort to LGBT people in the state about something that is not really there.

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