Del. Ken Plum: Legal Meaning of Sex Discrimination

by Del. Ken Plum June 2, 2016 at 2:00 pm 17 Comments

Del. Ken Plum/File photoThis is a commentary by Del. Ken Plum (D), who represents Reston. It does not reflect the opinion of Reston Now.

Attorney General Mark Herring recently issued an official opinion at my request and the requests of others as to the meaning of sex discrimination under Virginia law.

His thoroughly researched, 18-page opinion concluded that, in many instances, discrimination against LGBT individuals is actually illegal sex discrimination that violates both federal and state law.

Attorney General Herring’s opinion is both historic and courageous. It advances the work that many of us have been attempting to do in the legislature to ensure that individuals do not face discrimination in their housing or their workplaces because of their sexual orientation or gender identity. It is courageous in that the Attorney General could have chosen to duck the issues and leave it to the courts.

Simply stated, if an individual faces discrimination because of sexual orientation or gender identity, that person can seek relief under the Virginia Human Rights Act (VHRA). This act and others in the Virginia Code provide a clear declaration that the Commonwealth of Virginia does not and will not tolerate discrimination or allow someone to be treated unfairly because of their gender.

Federal courts have increasingly ruled in recent years that certain forms of discrimination directed at individuals because of their sexual orientation or gender identity can constitute illegal sex discrimination. The VHRA explicitly makes any violation of federal anti-discrimination law a concurrent violation of state law.

Numerous cases cited in the opinion make it clear that in the extensive and rapidly developing case law it is becoming clear that discrimination on the basis of sexual orientation or gender identity can constitute sex discrimination if based on gender stereotyping or treating a person unfairly due to gender.

While the Attorney General’s opinion is likely to receive criticism and attempts to thwart it by conservative members of the General Assembly, it has become an undisputed reality in the workplace in Virginia. Studies show that 80 percent of Virginia’s 25 largest employers have non-discrimination policies that include sexual orientation; 60 percent of Virginia’s largest private employers have policies that also include gender identity. Nationally, 89 percent of Fortune 500 companies prohibit discrimination on the basis of sexual orientation and 66 percent of Fortune 500 companies prohibit discrimination based on gender identity.

I am in full agreement with the statement Attorney General Herring issued regarding the opinion: “We don’t need to look far to see the division, discord, and pain that can happen when a state tries to enshrine discrimination against certain people it fears or does not understand. In recent years, Virginia has rejected this kind of misguided and sometimes mean-spirited approach. As the courts continue to put away the vestiges of discrimination and unequal treatment, I hope we will continue to show that Virginia rejects discrimination and welcomes all who would call our Commonwealth home.”

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