Virginia Board Stands Firm Against Cuccinelli

Despite pressure from the attorney general, Board of Juvenile Justice refuses to ax protections for LGBT youth

Virginia’s Board of Juvenile Justice this week re-endorsed a set of revised rules that protect LGBT youth. The move comes despite pressure from Attorney General Ken Cuccinelli (R) to rescind the protections, which apply to Department of Juvenile Justice Services residential facilities.

The friction stems from language adopted by the board in May 2005 under then-Gov. Mark Warner (D), which explicitly banned discrimination based on a variety of characteristics, including sexual orientation, in the department’s programs and facilities. The language was kept in place under Warner’s successor, Gov. Tim Kaine (D).

In June 2010, the Board of Juvenile Justice issued new rules for residential facilities retaining the LGBT protections. But in July 2011, Gov. Bob McDonnell (R) and Cuccinelli refused to sign off on the new rules, as they applied to residential facilities, as long as they contained LGBT protections.

In January 2012, Cuccinelli went a step further and threatened to deny board members legal representation in the event a lawsuit was lodged challenging the nondiscrimination provisions. While a similar threat worked in influencing the state Board of Social Services to approve regulations restricting potential adoptive and foster parents for a number of characteristics – including sexual orientation – the members of the Board of Juvenile Justice were not swayed.

The board eventually amended the language to prohibit ”discrimination on the basis of race, religion, national origin, sex, disability [or discrimination that violates the Equal Protection Clause of the United States Constitution, such as sexual orientation],” and submitted the language for review by the attorney general’s office in March. Cuccinelli’s office refused to approve the regulations, saying that the bracketed provision providing LGBT protections was ”not within the authority of the Board of Juvenile Justice to promulgate.”

Despite pushback from the attorney general, the Juvenile Justice Board refused to strip away the protections for LGBT youth. But in order to get the language approved, the board further amended the regulation to prohibit “discrimination in violation of the Constitution of the United States, the Constitution of the Commonwealth of Virginia, and state and federal statutes and regulations” in residential facilities.

Rather than enumerating various characteristics, the regulation instructs facilities to assess whether a resident belongs to a “vulnerable population.” If that determination is made, the facility must act to protect that resident’s health and safety.

The regulation defines a vulnerable population as “a resident or group of residents who have been assessed to be reasonably likely to be exposed to the possibility of being attacked or harmed, either physically or emotionally (e.g., very young residents; residents who are small in statures; residents who have limited English proficiency; residents who are gay, lesbian, bi-sexual, transgender, or intersex; residents with a history of being bullied or of self-injurious behavior).”

James Parrish, the executive director of Equality Virginia, and Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, released a joint statement Nov. 14 supporting of the board’s decision.

”The Board of Juvenile Justice adopted final rules in June 2010 that continued explicit prohibitions on discrimination against lesbian, gay, bisexual and transgender youth in its residential facilities,” Parrish and Gastañaga said in the statement. ”Since that time, the members of the Board have refused to retreat from their commitment to LGBT youth even in the face of the current Attorney General’s ill-founded, ideological intransigence.

”Unlike the Board for Social Services, which backed down from similar non-discrimination rules proposed for adoption and foster care agencies, the citizen representatives on the Juvenile Justice Board refused to be bullied and stood with the LGBT community. They did not give up on regulations essential to protect vulnerable LGBT youth in their care. … If properly implemented, the revised regulation adopted today will put staff in Juvenile Justice residential facilities on notice that any violation of the constitutional right of LGBT youth to be safe from discrimination (including harassment, bullying and criminal assaults) continues to be prohibited. The amended rules also include gay, lesbian, bisexual, transgender and inter-sex youth among vulnerable populations in Juvenile Justice facilities who may be entitled to special protections.”

Parrish and Gastañaga also vowed that their organizations would closely monitor the situation to ensure such protections are implemented.

Gastañaga told Metro Weekly that the regulations must go through a final period of executive review before being published in the Virginia Register of Regulations. Following its publication in the register, Virginians may offer public comment on the regulations for up to 30 days.

”This board just hung tough,” Gastañaga said, praising the members of the Board of Juvenile Justice. ”They refused to back down.”

But where those defending LGBT youth count a victory, so does the attorney general’s office. 

In a Nov. 16 statement emailed to Metro Weekly, Brian J. Gottstein, spokesman for the attorney general’s office, said that Cuccinelli had opposed the original regulations because they overstepped the board’s authority by making sexual orientation a protected class.

“The Virginia Human Rights Act lays out SPECIFIC classes of citizens that are to receive special protections under Virginia law (such as race, sex, religion, etc.), and it does not include sexual orientation,” Gottstein wrote. “Only the General Assembly can create protected classes under Virginia law, and a state agency has no authority to add or subtract protected classes.

“At a meeting earlier this week, the board adopted different language in its proposed regulations which achieves the board’s intentions regarding the protection of vulnerable youth – such as the LGBT population – within facilities regulated by the board. Because these amended regulations do not exceed the board’s authority, this office no longer opposes the proposed regulations.”

[Editor's note: This story was updated at 5:50 p.m., Nov. 16, to include Gottstein's response, and to include the final verision of the regulation text.]

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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