LGBT rights in Virginia
StatusLegal since 2003
(Lawrence v. Texas)
Gender identitySex-change recognized for purposes of marriage licenses
Discrimination protectionsSexual orientation and gender identity protections all areas since 2020
Family rights
Recognition of relationshipsSame-sex marriage legal since 2014
AdoptionYes

Lesbian, gay, bisexual, and transgender (LGBT) persons in the United States state of Virginia enjoy the same rights as non-LGBT persons. LGBT rights in the state are a recent occurrence, with most improvements in LGBT rights occurring in the 2000s and 2010s. Same-sex marriage has been legal in Virginia since October 6, 2014, when the U.S. Supreme Court refused to consider an appeal in the case of Bostic v. Rainey. Effective since July 1, 2020, there is a statewide law protecting LGBT persons from discrimination in employment, housing, public accommodations, and credit. The state's hate crime laws effective since July 1, 2020, now explicitly include both sexual orientation and gender identity.

Prior to July 1, 2020, Virginia only afforded limited protections for LGBT persons (in state employment only), the state's hate crime laws did not include a provision for sexual orientation or gender identity, and the statute criminalizing sodomy between same-sex and opposite-sex couples, though declared unconstitutional nationally by the Supreme Court of the United States in 2003, was not repealed until 11 years later in 2014.[1]

Law regarding same-sex sexual activity

Virginia's statutes criminalizing sodomy between same-sex and opposite-sex couples, "crimes against nature, morals and decency," were effectively invalidated by the U.S. Supreme Court decision in Lawrence v. Texas in 2003.

On March 4, 2020, Governor Ralph Northam signed into law formally repealing § 18.2-344, the ban on fornication between unmarried persons.[2] This ban was previously invalidated in 2005 by the Supreme Court of Virginia in Martin v. Ziherl.

On January 31, 2013, the Senate of Virginia passed a bill repealing § 18.2-345, the lewd and lascivious cohabitation statute enacted in 1877, by a vote of 40 to 0. On February 20, 2013, the Virginia House of Delegates passed the bill by a vote of 62 to 25 votes. On March 20, 2013, Governor Bob McDonnell signed the repeal of the lewd and lascivious cohabitation statute from the Code of Virginia.[3]

On March 12, 2013, a three-judge panel of the Court of Appeals for the Fourth Circuit struck down § 18.2-361, the crimes against nature statute. On March 26, 2013, Attorney General of Virginia Ken Cuccinelli filed a petition to have the case reheard en banc, but the Court denied the request on April 10, 2013, with none of its 15 judges supporting the request.[4] On June 25, Cuccinelli filed a petition for certiorari asking the U.S. Supreme Court to review the Court of Appeals decision, which was rejected on October 7.[5][6] On February 7, 2014, the Virginia Senate voted 40–0 in favor of revising the crimes against nature statute to remove the criminalization of consensual same-sex sexual relations. On March 6, 2014, the Virginia House of Delegates voted 100–0 in favor of the bill. The bill (as amended by Governor McAuliffe's recommendations) was signed into law by Governor McAuliffe and went into effect immediately.[7][8]

Recognition of same-sex relationships

Marriage

Main article: Same-sex marriage in Virginia

Virginia voters ratified a constitutional amendment defining marriage as the union of a man and a woman in November 2006.[9] Prior to 2020 Virginia statute also contained language banning any recognition of same-sex marriage. The constitutional amendment also prohibited the Commonwealth of Virginia and its political subdivisions, such as counties and independent cities, from creating or recognize any legal status for relationships of unmarried individuals, such as domestic partnership benefits.

In mid-2013, two lawsuits were filed in federal court challenging the state's ban on same-sex marriage. In January 2014, newly elected Attorney General Mark Herring filed a brief stating the state's reversal in the lawsuit in Norfolk: "The Attorney General has concluded that Virginia’s laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution."[10] Governor Terry McAuliffe, also a recently elected Democrat, backed Herring's refusal to defend the ban.[11]

A federal court decision in Bostic v. Rainey on February 13, 2014, found Virginia's ban on same-sex marriage unconstitutional, but stayed enforcement of that decision pending appeal.[12] On July 28, 2014, the Fourth Circuit ruled 2–1 in favor of upholding the lower court's decision to strike down Virginia's ban on same-sex marriage.[13] Scheduled on August 21, 2014, gay marriage was to be legal in Virginia, but was later put on hold by the Supreme Court on August 20, 2014 to review the option.[14][15] Same-sex marriage in the U.S. Commonwealth of Virginia has been legal since October 6, 2014, following a decision by the Supreme Court of the United States to refuse to hear an appeal of the Fourth Circuit Court of Appeals in the case Bostic v. Schaefer. Marriages of same-sex couples subsequently began at 1pm October 6 after the Circuit Court issued its mandate; the first same-sex couple to marry in the Commonwealth was Lindsey Oliver and Nicole Pries in Richmond, Virginia.[16][17] Since then Virginia has performed legal marriages of same-sex couples and recognized out-of-state marriages of same-sex couples.

On March 3, 2020, Governor Ralph Northam signed into law a bill formally repealing the defunct statutory ban on same-sex marriage and civil unions.[18]

Domestic partnership

In December 2009, Governor Tim Kaine started a process designed to extend employee health benefits to the same-sex partners of the state's employees.[19] After Bob McDonnell became governor in January 2010, he asked Attorney General Ken Cuccinelli for a legal opinion on such an extension of benefits, and Cuccinelli issued a legal opinion that the anticipated change to the Commonwealth's health plan required authorizing legislation. His ruling ended the administrative process Kaine had initiated.[20]

Arlington County

Arlington County announced plans in May 1997 to modify its employee health plan so that same-sex partners could gain coverage, and on March 12, 1998, three local taxpayers asked the Arlington County Circuit Court to stop the county from doing so. The Circuit Court agreed[21] and on appeal the Supreme Court of Virginia ruled in Arlington County v. White on April 21, 2000, that local governments are subject to state statutes and prohibited from expanding employee health insurance benefits beyond spouses or financial dependents.[22][23]

City of Alexandria

An employee of the City of Alexandria can apply for Domestic Partnership benefits within the legal penumbra of the City of Alexandria provided the two parties have lived together for six (6) months or more and can prove cohabitation using shared bills, or a shared lease, among other forms of proof. It is implied that same-sex couples can apply for this benefit.[24]

Hospital visitation

On February 5, 2007, the Virginia House of Delegates voted 97–0 in favor of a bill that would extend hospital visitation rights to same-sex couples through a designated visitor statute. On February 20, 2007, the Virginia State Senate voted 40–0 in favor of the bill. On March 26, 2007, Governor Tim Kaine signed the bill into law, which went into effect on July 1, 2007.[25]

Adoption and parenting

Virginia allows single persons and opposite-sex married couples to adopt children. The state has no explicit prohibition on adoption by same-sex couples or second-parent adoptions.[26]

On April 20, 2011, the State Board of Social Services voted 7–2 against rules that would have prohibited discrimination in adoptions "on the basis of gender, age, religion, political beliefs, sexual orientation, disability, family status, race, color or national origin." Members cited the advice of Virginia Attorney General Ken Cuccinelli that the rules under consideration violated state law.[27]

On February 3, 2012, the Virginia House of Delegates voted 71–28 in favor of a bill, HB 189, that authorizes adoption agencies to refuse adoptions for religious reasons. On February 9, an identical bill, SB349, passed the Virginia State Senate on a 22–18 vote. On February 21, the Senate voted 22–18 in favor of HB 189. On February 22, the House of Delegates voted 71–28 in favor of SB 349. On April 9, Governor Bob McDonnell signed both bills into law, and they took effect on July 1, 2012.[28][29]

In February 2019, the Virginia General Assembly (by House vote 63-36 and Senate vote 28-12) passed a bill to explicitly and legally include surrogacy contracts for same-sex couples. The bill was signed into law in March 2019 by the Governor of Virginia Ralph Northam. The law went into effect on July 1, 2019.[30]

In February 2021, Virginia Lawmakers passed a bill to ban taxpayers dollars going directly to religious organizations - that discriminate against LGBT individuals within adoption placements.[31][32]

Discrimination protections

Further information: LGBT employment discrimination in the United States

Map of Virginia counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances (prior to July 1, 2020) .mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{}  Sexual orientation and gender identity with anti–employment discrimination ordinance   Sexual orientation with anti–employment discrimination ordinance and gender identity solely in public employment   Sexual orientation and gender identity solely in public employment
Map of Virginia counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances (prior to July 1, 2020)
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation with anti–employment discrimination ordinance and gender identity solely in public employment
  Sexual orientation and gender identity solely in public employment

Effective on July 1, 2020, Virginia law prohibits discrimination based on gender identity or sexual orientation in all areas, including employment.[33] Arlington County and the independent city of Alexandria prohibit discrimination in employment for sexual orientation only.[34]

On January 11, 2014, Governor Terry McAuliffe's first executive order prohibited employment discrimination in public sector employment.[35] This restored the protections first provided in 2005 by Governor Mark Warner and continued under Governor Tim Kaine, which Governor Bob McDonnell had failed to include in his 2010 executive order protecting state workers from certain types of discrimination.[36]

The Virginia Senate has passed legislation to prohibit the state government from discriminating against its employees based on sexual orientation in 2010, 2011, and 2013,[37] but the Virginia House of Delegates did not vote on any of those measures.

On February 6, 2020, the Virginia General Assembly passed the "Virginia Values Act," which would provide nondiscrimination protections for LGBTQ people in employment, housing, credit, and public accommodations. The bill was signed into law by Governor Ralph Northam on April 11, 2020.[38] The law took effect on July 1, 2020, the first of its kind in the Southern United States.[39][40]

On March 4, 2020, Governor Ralph Northam signed into law a bill that would allow localities to enact their own non-discrimination protections against sexual orientation and gender identity.[41]

Lawsuits filed

In September 2020, several lawsuits were filed within Virginia courts by religious groups and a wedding photographer - due to new anti-discrimination laws enacted and in effect since July 1, 2020 that allegedly "violates religious freedoms and expression of individuals".[42][43][44] On March 2021, a federal judge dismissed immediately the legal challenge to Virginia's anti-discrimination laws.[45]

In September 2021, the Virginia Supreme Court upheld a lower court ruling that reinstated a teacher who had been suspended for speaking out against transgender children and not using their pronouns, based on his Christian beliefs.[46][47]

Hate crime laws

Virginia's hate crime laws address violence based on race, religious conviction, color, national origin, disability, gender, sexual orientation and gender identity.[48]

On March 4, 2020, Governor Ralph Northam signed into law a bill that would add sexual orientation and gender identity to the state's hate crime laws. This law took effect on July 1, 2020.[49]

Gay or trans panic defence

The bill (HB 2132) to repeal the gay panic defense passed the Virginia General Assembly in March 2021. The bill (HB 2132) was signed into law by the Governor of Virginia Ralph Northam and went into effect on July 1.[50][51][52][53][54][55]

Conversion therapy

Virginia prohibits health care providers from trying to change the sexual orientation and/or gender identity of minors.[56]

Gender identity and expression

Individuals within Virginia since 1979 needed sexual reassignment surgery, to change sex on a birth certificate.[57] However effective since September 1, 2020, individuals will just need “appropriate clinical treatment” to change sex on a birth certificate - under recently passed and signed laws by both the Virginia General Assembly and the Governor of Virginia cutting red tape.[58]

Effective July 1, 2020, Virginia began offering an "X" gender marker on state driver’s licenses.[59][60]

In 2014, a transgender high school student in Gloucester County was not allowed to use the boys' bathroom, but a court ruled that the school board acted unlawfully in preventing him from using the bathroom, and the U.S. Supreme Court in 2021 let that lower court's ruling stand.[61]

HIV law reforms

In March 2021, the Virginia General Assembly passed a bill (SB1138) to decriminalize and modernise HIV laws. The bill (SB1138) was signed into law by the Governor of Virginia Ralph Northam on March 31, 2021.[62] This would make Virginia the first southern US state to legally do this.[63][64][65]

21-member LGBTIQ+ advisory panel

In March 2021, a bill was signed into law by the Virginia Governor Ralph Northam - that will establish a 21-member LGBTIQ+ advisory panel from July 1.[66][67]

Major political party platforms

The Democratic Party of Virginia platform follows the platform of the Democratic National Committee.[68]

The Virginia Republican Party follows the Virginia Republican Creed, which does not explicitly address LGBT rights. The creed simply states "That all individuals are entitled to equal rights, justice, and opportunities and should assume their responsibilities as citizens in a free society."[69]

Summary table

Same-sex sexual activity legal
(Since 2003 - nationwide; codified by legislation in 2014)
Equal age of consent
Anti-discrimination laws in all areas that explicitly cover both sexual orientation and gender identity
(Since 2020)
Same-sex marriages and other relationship recognition
(Since 2015 - nationwide)
Gay or trans panic defence abolished
(Since 2021)[51][53]
Joint and stepchild adoption by same-sex couples
(However “religious exemptions” apply)
Lesbian, gay and bisexual people allowed to serve openly in the military
(Since 2011 - nationwide)
Transgender people allowed to serve openly in the military
/
(Most Transgender personnel allowed to serve openly since 2021)[70]
Transvestites allowed to serve openly in the military
[71]
Intersex people allowed to serve openly in the military
/
(Current DoD policy bans "Hermaphrodites" from serving or enlisting in the military)[71]
Right to change legal gender without sexual reassignment surgery
(Since 2020)[58]
Access to IVF for lesbians
Hate crime laws that explicitly cover both sexual orientation and gender identity
(Since 2020)
Conversion therapy banned on minors
(Since 2020)
Third gender option
(Since 2020)[59][60]
Commercial surrogacy for gay male couples
(Since 2019)[30]
MSMs allowed to donate blood
/
(3 month deferral period; federal policy)

See also

References

  1. ^ "LIS > Bill Tracking > SB14 > 2014 session".
  2. ^ "HB 245 Fornication; repeal". Retrieved March 4, 2020.
  3. ^ "SB 969". Open:States. Retrieved April 13, 2013.
  4. ^ Johnson, Luke (April 10, 2013). "Ken Cuccinelli Loses Petition To Uphold Anti-Sodomy Law". The Huffington Post. Retrieved April 10, 2013.
  5. ^ Johnson, Luke (June 25, 2013). "Ken Cuccinelli Appeals To Defend Virginia's Anti-Sodomy Law At Supreme Court". Huffington Post.
  6. ^ "Court won't hear Va. appeal over sodomy law". USA Today. October 7, 2013.
  7. ^ "Sodomy; crimes against nature, clarifies provisions of clause, penalty. (SB14)". Richmond Sunlight. Retrieved March 10, 2014.
  8. ^ "SB 14 Sodomy; crimes against nature, clarifies provisions of clause, penalty". Leg1.state.va.us. Retrieved 2014-06-29.
  9. ^ Fox News: "Gay Marriage Amendment Passes in Virginia," November 7, 2006, accessed April 9, 2011
  10. ^ Laura Vozzella (January 23, 2014). "Va. Republicans ready to defend same-sex marriage ban". Washington Post.
  11. ^ Michael Muskal (February 4, 2014). "Gay-marriage battle unfolds in Virginia, Utah courts". Los Angeles Times.
  12. ^ Case Text: Bostic v. Rainey, Accessed February 15, 2014
  13. ^ Floyd, Henry F.; Gregory, Roger; Niemeyer, Paul; U.S. Circuit Judges (28 July 2014). "Opinion, Bostic v. Shaefer, No. 14-1167". U.S. Court of Appeals for the Fourth Circuit. Scribd.com. PACER Document 234.
  14. ^ "Gay marriage in Virginia set to begin Aug. 21". USA TODAY. Retrieved 2019-09-27.
  15. ^ Rappeport, Alan (2014-08-20). "Supreme Court Delays Gay Marriage in Virginia, a Day Before It Was Set to Begin". The New York Times. ISSN 0362-4331. Retrieved 2019-09-27.
  16. ^ "Same-sex couples start marrying in Virginia". WXII. October 6, 2014.
  17. ^ "The Two Women Pictured Here Just Made History in Virginia". Mic.
  18. ^ "Virginia ban on same-sex marriage, civil unions repealed". Augusta Free Press. 2020-03-03. Retrieved 2020-03-03.
  19. ^ Kumar, Antia (December 4, 2009). "Kaine plans to extend health benefits to same-sex partners". Washington Post. Retrieved June 11, 2010.
  20. ^ Walker, Julian (February 1, 2010). "Same-sex partner benefits tossed out: Outgoing Gov. Tim Kaine proposed the policy change, but the Commonwealth's new attorney general advised against it". Roanoke Times. Archived from the original on October 6, 2012. Retrieved June 11, 2010.
  21. ^ Davis, Patricia (March 5, 1999). "Court Finds Arlington's Benefits Policy Illegal". Washington Post. Retrieved January 23, 2014.
  22. ^ Coolidge, David (April 27, 2000). "Virginia High Court Rejects Arlington's Domestic Partnership Policy". Catholic Herald. Retrieved January 23, 2014.
  23. ^ "Arlington County et al. v. White et al". Virginia Lawyer's Weekly. April 21, 2000. Retrieved January 23, 2014.
  24. ^ "City of Alexandria, Virginia DOMESTIC PARTNER BENEFITS" (PDF). City of Alexandria. City of Alexandria. Retrieved 28 September 2019.
  25. ^ "LIS > Bill Tracking > HB2730 > 2007 session". leg1.state.va.us.
  26. ^ Human Rights Campaign: "Virginia Adoption Law" Archived 2012-01-18 at the Wayback Machine, accessed April 9, 2011
  27. ^ Washington Post: Anita Kumar, "Same-sex adoptions lose ground after Va. board vote," April 20, 2011, accessed April 20, 2011
  28. ^ "HB 189 Child-placing agency; shall not be required to participate in placement of child for foster care". Leg1.state.va.us. Retrieved 2014-06-29.
  29. ^ "SB 349 Child-placing agency; shall not be required to participate in placement of child for foster care". Leg1.state.va.us. Retrieved 2014-06-29.
  30. ^ a b "LIS > Bill Tracking > HB1979 > 2019 session". lis.virginia.gov.
  31. ^ "Virginia lawmakers move to cut state funding for adoption agencies that refuse LGBTQ couples". 15 February 2021.
  32. ^ "Virginia lawmakers move to cut state funding for adoption agencies that refuse LGBTQ couples".
  33. ^ Virginia.gov: Virginia Human Rights Act Archived 2002-09-13 at the Library of Congress Web Archives, accessed April 9, 2011
  34. ^ "Virginia – Sexual Orientation and Gender Identity Law and Documentation of Discrimination" (PDF). UCLA School of Law. September 2009. Retrieved May 23, 2013.
  35. ^ "Gov. McAuliffe signs Executive Order No. 1 prohibiting discrimination based on sexual orientation, gender identity". Augusta Free Press. January 11, 2014. Retrieved January 11, 2014.
  36. ^ Helderman, Rosalind S. (2010-02-10). "McDonnell reverses predecessors' policy". Washington Post. Archived from the original on 2013-06-18. Retrieved 2013-12-05.
  37. ^ "Virginia Senate passes bill to protect state LGBT employees from discrimination". JURIST Legal News & Research. January 26, 2013. Retrieved January 27, 2013.
  38. ^ Virginia, Blue (11 April 2020). "Governor Northam Signs Virginia Values Act". Retrieved 2020-04-11.
  39. ^ "Virginia Values Act, a bill to guarantee LGBTQ equality, passes Virginia Senate". Metro Weekly. 2020-02-06. Retrieved 2020-02-06.
  40. ^ WHSV newsroom (6 February 2020). "Lawmakers pass 'Virginia Values Act' to prohibit LGBTQ discrimination". WHSV 3. Retrieved 2020-02-08.
  41. ^ Virginia, Blue (5 March 2020). "Governor Northam Signs 49 Bills into Law". Retrieved 2020-03-06.
  42. ^ [1]
  43. ^ [2]
  44. ^ [3]
  45. ^ [4]
  46. ^ [5]
  47. ^ [6]
  48. ^ Equality Virginia: "Hate Crimes" Archived 2011-07-19 at the Wayback Machine, accessed April 9, 2011
  49. ^ "SB 179 Hate crimes; adds gender, disability, gender identity, or sexual orientation, penalty".
  50. ^ [7]
  51. ^ a b [8]
  52. ^ [9]
  53. ^ a b [10]
  54. ^ [11]
  55. ^ [12]
  56. ^ "Virginia bans conversion therapy for LGBTQ children". www.cbsnews.com. Retrieved 2020-03-04.
  57. ^ Rose, Katrina C. (March 3, 2020). "Virginia passed a statute governing trans birth certificates in 1979. It wasn't controversial then". LGBTQ Nation.
  58. ^ a b "LIS > Bill Tracking > HB1041 > 2020 session". lis.virginia.gov.
  59. ^ a b "Northam signs Va. non-binary driver's license bill into law". April 7, 2020.
  60. ^ a b "LIS > Bill Tracking > SB246 > 2020 session". lis.virginia.gov.
  61. ^ Golgowski, Nina (2021-06-28). "U.S. Supreme Court Declines To Hear Major Transgender Bathroom Case". HuffPost. Retrieved 2021-07-01.
  62. ^ [13]
  63. ^ [14]
  64. ^ [15]
  65. ^ [16]
  66. ^ [17][bare URL]
  67. ^ [18]
  68. ^ "2016DEMOCRATIC PARTYPLATFORM" (PDF).
  69. ^ "VIRGINIA REPUBLICAN CREED". Republican Party of Virginia.
  70. ^ https://apnews.com/article/biden-reverse-ban-transgender-military-f0ace4f9866e0ca0df021eba75b3af20
  71. ^ a b https://www.military.com/join-armed-forces/disqualifiers-medical-conditions.html