LGBT rights in Virginia
|LGBT rights in Virginia|
|Same-sex sexual activity legal?||Legal since 2003
(Lawrence v. Texas)
|Gender identity/expression||Sex-change recognized for purposes of marriage licenses|
|Marshall-Newman Amendment limits marriage to man/woman, places restrictions on non-marriage types of same-sex unions|
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Virginia face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Virginia. Same-sex couples and families headed by same-sex couples are not eligible for all the protections available to opposite-sex married couples.
Laws against homosexuality
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.
In 2005, basing its decision on Lawrence, the Supreme Court of Virginia in Martin v. Ziherl invalidated § 18.2-344, the Virginia stature making fornication between unmarried persons a crime. On January 31, 2013, the Senate of Virginia passed a bill repealing § 18.2-345, the lewd and lascivious cohabitation stature enacted in 1877, by a vote of 40 in favor and 0 votes against. On February 20, 2013, the Virginia House of Delegates passed the bill by a vote of 62 in favor and 25 votes against.
On Mar 20, 2013, Governor Bob McDonald signed the repeal of the lewd and lascivious cohabitation stature from the Code of Virginia. On March 12, 2013, a three-judge panel of the United States Court of Appeals for the Fourth Circuit stuck down § 18.2-361, the crimes against nature stature. On March 26, 2013, Attorney General of Virginia Ken Cuccinelli filed a petition to have the case reheard en banc by the entire 15-judge 4th Circuit Court of Appeals, but the Court denied the request on April 10, 2013.
Recognition of same-sex relationships
Virginia voters ratified a constitutional amendment defining marriage as the union of a man and a woman in November 2006. The state recognizes no other same-sex relationship. The same definitions and restrictions appear in state statutes.
Marshall-Newman Amendment also prohibits 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.
Virginia has extended hospital visitation rights to same-sex couples though a designated visitor statute.
In December 2009, Governor Tim Kaine had started a process which would extend Virginia employee health benefits to same-sex partners. At McDonnell's request, Attorney General Ken Cuccinelli issued a legal opinion that this change to the coverage of the state's health plan could not be made without explicit legislation authorizing it, thereby halting the administrative process to make the change. However, McDonnell did sign a law which would allow Virginia employers to offer private insurance coverage for employees' same-sex partners, after the bill passed with bipartisan support.
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.
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.
Virginia law does not address discrimination based on gender identity or sexual orientation.
Northern Virginia counties of Arlington and Fairfax along with the independent cities of Alexandria, Charlottesville, Falls Church, Roanoke, Virginia Beach, Williamsburg prohibit discrimination in employment for sexual orientation only. Loudoun County prohibits discrimination in employment for sexual orientation and gender identity. All public universities in the state have non-discrimination policies based on sexual orientation, but not gender identity.
In 2005, under Governor Mark Warner he extended protections for state employees by prohibiting discrimination in sexual orientation by executive order. This executive order continued under Governor Tim Kaine, however when Governor Bob McDonald came into office in 2010, he enacted an executive order that took sexual orientation out of the list of things that a state worker cannot be discriminated against.
Since than the Virginia State Senate has passed legislation that would prohibit the state government from discriminating against its employees based on sexual orientation in 2010, 2011, and 2013, however each time the bills had died in committee without a vote in the Virginia House of Delegates.
Virginia's hate crime laws address violence based on race, religious conviction, color or national origin, but not on sexual orientation or gender identity.
A 2011 Washington Post poll found that 47% of Virginians favored the legalization of same-sex marriage, while 43% opposed it and 10% had no opinion. It found 55% favored allowing same-sex couples to adopt children, while 35% opposed that and 10% had no opinion. The same poll found that 64% of residents Arlington, Alexandria, Fairfax, Fairfax County support same-sex marriage, 63% of residents of Loudoun, Prince William, Manassas, Manassas Park, Stafford, Fauquier, Culpeper, Madison, Rappamannock, Warrenton, Clarke County, Frederick, and Winchester support same-sex marriage, while only 42% of the rest of Virginia supports same-sex marriage.
A July 2011 Public Policy Polling survey found that 35% of Virginia voters thought that same-sex marriage should be legal, while 52% thought it should be illegal and 14% were not sure. A separate question on the same survey found that 65% of Virginia voters supported the legal recognition of same-sex couples, with 32% supporting same-sex marriage, 33% supporting civil unions but not marriage, 33% favoring no legal recognition and 2% not sure.
A December 2011 Public Policy Polling survey found that 34% of Virginia voters thought that same-sex marriage should be legal, while 53% thought it should be illegal and 13% were not sure. A separate question on the same survey found that 59% of Virginia voters supported the legal recognition of same-sex couples, with 31% supporting same-sex marriage, 28% supporting civil unions but not marriage, 38% favoring no legal recognition and 3% not sure.
A May 2012 Public Policy Polling survey found that 41% of Virginia voters thought that same-sex marriage should be legal, while 50% thought it should be illegal. 9% were not sure. When civil unions were thrown into the mix, 65% of voters favored some form of legal recognition for gay couples.
A 2012 Washington Post poll found that 49% of Virginians favored the legalization of same-sex marriage, while 40% opposed it and 11% had no opinion.
A Washington Post poll taken in April–May 2013 found that 56% of registered voters thought same-sex marriage should be legal, while only 33 percent thought it should be illegal, and 10% had no opinion.
- Google Scholar: Martin v.Ziherl, accessed April 9, 2011
- "SB 969". Open:States. Retrieved April 13, 2013.
- "Ken Cuccinelli Loses Petition To Uphold Anti-Sodomy Law". The Huffington Post. Retrieved 04/10/2013.
- Fox News: "Gay Marriage Amendment Passes in Virginia," November 7, 2006, accessed April 9, 2011
- Hospital Visitation Rights
- Kumar, Antia (December 4, 2009). "Kaine plans to extend health benefits to same-sex partners". Washington Post. Retrieved 2010-06-11.
- Walker, Julian (February 1, 2010). "Same-sex partner benefits tossed out: Outgoing Gov. Tim Kaine proposed the policy change, but the state's new attorney general advised against it.". Roanoke Times. Retrieved 2010-06-11.
- Johnson, Chris (April 27, 2010). "Pro-gay life insurance bill becomes law in Va.". Washington Blade. Retrieved 2010-06-11.
- Human Rights Campaign: "Virginia Adoption Law", accessed April 9, 2011
- Washington Post: Anita Kumar, "Same-sex adoptions lose ground after Va. board vote," April 20, 2011, accessed April 20, 2011
- Virginia.gov: Virginia Human Rights Act, accessed April 9, 2011
- "Virginia – Sexual Orientation and Gender Identity Law and Documentation of Discrimination". UCLA School of Law. September 2009. Retrieved May 23, 2013.
- "Loudoun's nondiscrimination policy expanded". The Washington Post. January 6, 2010. Retrieved May 23, 2013.
- McDonnell reverses predecessors' policy
- "Virginia senate passes bill to protect state LGBT employees from discrimination". JURIST Legal News & Research. January 26, 2013. Retrieved January 27, 2013.
- Equality Virginia: "Hate Crimes", accessed April 9, 2011
- Washington Post: "Washington Post poll finds Virginians are split on gay marriage; support gay couple adoptions," May 10, 2011, accessed May 10, 2011
- Virginia politics, Northern Virginia style
- Public Policy Polling: "Virginia opposes gay marriage, statewide politicians popular," July 29, 2011, accessed July 29, 2011
- Public Policy Polling: "Virginia down on Cantor, favors civil unions," December 13, 2011, accessed December 13, 2011
- "Virginia Miscellany". Public Policy Polling. Retrieved 5/4/2012.
- "Washington Post Poll". The Washington Post.
- "Virginians' changing views on gay marriage," washingtonpost.com, 14 May 2013, accessed 15 May 2013.