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Gov. McDonnell Issues Directive With No Teeth: Take Action for Virginia’s Public Employees

Virginia 10Last week, Virginia’s Attorney General sent a strongly-worded legal opinion to the state’s public higher education institutions’ presidents and their board members indicating that they should rescind non-discrimination policies with sexual orientation and gender identity or expression. As outrage from Virginia public college and university communities continued to swell, Virginia Governor Bob McDonnell issued a directive to government employees yesterday afternoon.  The directive states, among other things:

The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. 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 is a big step in the right direction – Gov. McDonnell’s directive seems to counter the Attorney General’s actions, it acknowledges that employment discrimination is a challenge faced by LGBT Virginians, and it tries to articulate his intention for no one to be discriminated against. But the directive doesn’t go nearly far enough.  As worded, it doesn’t give Virginia’s LGBT state employees any more protections than the U.S. Constitution already provides. But as hundreds of cities and counties, 21 states and hundreds of private companies across the United States have already determined, it is absolutely necessary to have laws and policies that clearly and explicitly protect LGBT people by prohibiting employment discrimination based on sexual orientation and gender identity or expression, and by providing clear mechanisms to report such discrimination.

Take action now:

Ask Gov. McDonnell to reinstate protections for LGBT employees by executive order and to push the state legislature to enact legislation that would provide clear and consistent protections for all employees in Virginia. As we reported last Friday, Attorney General Ken Cuccinelli sent a letter to the state’s public higher education institutions (see full list) advising them to remove employment protections based on sexual orientation and gender identity or expression. Cuccinelli’s move was just weeks after Gov. Bob McDonnell’s stripped “sexual orientation” from previous executive orders on employment discrimination for state employees.  Virginia is one of the 29 states where people can be fired for their sexual orientation and 38 states where people can be fired for their gender identity or expression. Although most of these schools are on spring break, reaction to the news has been tremendous – Facebook groups have formed for most schools as well as a broader group numbering in the thousands of members, and organizations such as the American Association of University Professors have expressed their concern. Several of the schools have indicated they’re looking into their options, including statements from leaders at Virginia Commonwealth University (whose president called the AG’s actions “mean-spirited” at a forum on the issue on Tuesday), William & Mary and George Mason University. See more about these statements after the jump. Interestingly, the Washington Post reports that newly-elected VA Gov. Bob McDonnell indicated he would consider signing legislation for employment protections for LGBT people – if the state’s General Assembly were to pass it:  "I'd consider it. I'd have to look at the legal arguments for it." An effort to revive such legislation failed in the Virginia House yesterday by a vote of 55 to 42. See statements from Virginia school leaders after the jump. George Mason University’s Ernst Volgenau, Rector of the Board of Visitors, made a statement by e-mail to the University and its staff on Wednesday morning:

Last week the Virginia Attorney General sent a letter concerning the interpretation of a protected class in university non-discrimination policies.  The letter was sent to President Merten, the Board of Visitors, and Visitors of all the state's public universities. I have asked the Administration to assemble the appropriate policies to ensure that the University remains committed to equal protection under the law.  To that end, the Board of Visitors extends its full and unconditional support to all members of the University community and encourages continued focus on diversity and mutual respect that has become our hallmark. Ernst Volgenau Rector

William & Mary President Taylor Reveley sent the following message to the College community on Tuesday:

Dear William & Mary Community, Virginia’s Attorney General has written public colleges and universities in the Commonwealth about their anti-discrimination policies.  At William & Mary, we need to review carefully the AG’s views as a matter of law and policy, as well as seek the counsel of the campus community, including of course our Board of Visitors.  This process has just begun. For now, let’s be clear that William & Mary neither discriminates against people nor tolerates discrimination on our campus.  Those of us at W&M insist that members of our campus community be people of integrity who have both the capacity to meet their responsibilities to the university and the willingness to engage others with civility and respect.  We do not insist, however, that members of our community possess any other particular characteristics, whether denominated in race, religion, nationality, sex, gender, sexual orientation, gender identity or expression, or any other of the myriad personal characteristics that differentiate human beings.  We certainly do not discriminate against people on such grounds, or tolerate discrimination against them.  This is the way we live our lives together at William & Mary, because we believe this is the way we should live our lives together.  This is not going to change.   Taylor Reveley  

Virginia Commonwealth University Provost Stephen D. Gottfredson made some comments at a forum attended by 250 people on Tuesday, as reported by the Richmond Times-Dispatch:

Describing the opinion as "mean-spirited," Gottfredson said it was just Cuccinelli’s interpretation of the law. "I personally beg to disagree," he said. Diversity and inclusion are "embedded in the very fiber of VCU," he said, and those policies will stand unless the board of visitors acts to change them.
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