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.”

  • susie

    Really, Ken? What about discrimination against Christians and religious liberty? Did you ever teach that when you were collecting your salary from the taxpayers?

    • Jules Winnfield

      You can rely on Ezekiel 25:17

  • Chuck Morningwood

    So, Ken, you won’t be alarmed when your granddaughter comes running out of the public bathroom, yelling “Gramps. There’s a man in there.”

    • Tom

      Do you have any evidence that has EVER happened?

      • susie

        Do you have any evidence that it didn’t?

        • PiedPiper

          Do you have any proof that He exists.
          Do you have any proof He does not, therefore He does.

          Do you have proof that Unicorns do not exist, therefore they do.
          Pigs can fly.
          Oranges are blue.
          Ignorance is bliss.

          • Mike M

            It’s a huge country. There are plenty of deviants and they find a way to act out. Often, they are extremely irrationally driven. There have certainly been sexual assaults in public restrooms. This is an avenue that someone will exploit soon. The whole issue flabbergasts me. When did this choose-your-potty thing become an issue of national concern? What letter comes after T in LGBT? I am pretty confident that the radical left aims at no bathrooms based on gender. They want unisex bathrooms, and that turns this whole Transgender bathroom rights on it’s ear. Maybe in the upcoming Hilary administration. But its not really about rights at all. It’s about the agitation machine and dividing people, and riling up the right.

          • Chuck Morningwood

            Pretty soon, there will be no “multi-holer” bathrooms. They only way anyone will feel safe is when each restroom has a single hole. Good News: There will be no need to assign bathrooms by gender. Bad News: Cretinous young boys will still urinate all over the seat AND they will become havens for IV drug freaks.

      • Chuck Morningwood

        Your argument — it hasn’t happened, so there’s no need to worry about it — is the same argument that doesn’t get traffic lights installed at widely known dangerous intersections, until there are a series of significant accidents.

        Don’t need any evidence. Based on the law, how could anybody stop me from walking into the Ladies Room.

  • 1st

    Careful guys, either agree with him or be blocked.

    • .


  • HerrOtto

    Ken, thank you for the article. Please ignore the ignorant, bigoted crypto fascists hiding behind religion and continue all the amazing work you’ve done for this district, and the entire Commonwealth! I’ll be making a donation to your campaign fund immediately.

    • Mike M

      Ken, if someone disagrees with you, they must be bigoted, ignorant, fascist, and hiding behind their religion. Right? Let’s stay smug in our righteousness.

      In the mean time, HerrOtto and I will try to recall the “amazing work you’ve done for this district.”

  • Virginia Harlow

    Today, I think my “gender identity” may be something else. I think I’ll be a male hispanic muslim who thinks women who aren’t totally covered are inviting sexual assault. See how that works? I have no problem with LGBT, but “gender identity” is just plain foolish. But I’m so glad you will support me in my choice of a gender identity today, Ken.

  • Virginia Harlow

    Bunch of lemmings going off a cliff, because someone else did….

  • east297

    Oh dear….Ken at his worst….deliver us!!!

  • Stormy_Fireriver

    I think discrimination is bad however I think that it’s getting to the point where often times disagreements about certain issues becomes an all of nothing prospect. Agreeing to disagreeing just doesn’t happen anymore and that’s sad.


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