LGBT rights in Virginia

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LGBT rights in Virginia
Map of USA VA.svg
Same-sex sexual intercourse legal status Legal since 2003
(Lawrence v. Texas)
Gender identity/expression Sex-change recognized for purposes of marriage licenses
Discrimination protections Sexual orientation and gender identity protections in state employment
Family rights
Recognition of
Same-sex marriage legal since 2014
Adoption Yes

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. Commonwealth of Virginia face legal challenges not experienced by non-LGBT residents. 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.

Law regarding same-sex sexual activity[edit]

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.[1]

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.[2]

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.[3] 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.[4][5] 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.[6][7]

Recognition of same-sex relationships[edit]


Virginia voters ratified a constitutional amendment defining marriage as the union of a man and a woman in November 2006.[8] The state recognizes no other same-sex relationship. The same definitions and restrictions appear in state statutes. The 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.

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."[9] Governor Terry McAuliffe, also a recently elected Democrat, backed Herring's refusal to defend the ban.[10]

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.[11] 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.[12] 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.[13][14]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.[15][16] Since then Virginia has performed legal marriages of same-sex couples and recognized out-of-state marriages of same-sex couples.

Domestic partnership[edit]

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.[17] 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.[18]

Arlington County[edit]

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[19] 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.[20][21]

Hospital visitation[edit]

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.[22]

Adoption and parenting[edit]

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.[23]

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.[24]

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.[25][26]

Discrimination protection[edit]

Map of Virginia counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  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

Virginia law does not address discrimination based on gender identity or sexual orientation in private sector employment.[27] Arlington County and the independent city of Alexandria prohibit discrimination in employment for sexual orientation only.[28]

On January 11, 2014, Governor Terry McAuliffe's first executive order prohibited employment discrimination in public sector employment.[29] 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.[30]

In January 2016, a Virginia State Senate committee approved two bills (SB12 and SB67) addressing LGBT discrimination. SB12 bans LGBT discrimination against state employees, codifying into law Governor McAuliffe’s 2014 executive order banning discrimination against state employees based on their sexual orientation and gender identity. SB67 adds sexual orientation and gender identity to the Virginia Fair Housing Act. Both bills will next be voted on by the Senate.[31]

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,[32] but the Virginia House of Delegates did not vote on any of those measures.

Hate crime[edit]

Virginia's hate crime laws address violence based on race, religious conviction, color or national origin, but not on sexual orientation or gender identity.[33]

See also[edit]


  1. ^ Google Scholar: Martin v.Ziherl, accessed April 9, 2011
  2. ^ "SB 969". Open:States. Retrieved April 13, 2013. 
  3. ^ Johnson, Luke (April 10, 2013). "Ken Cuccinelli Loses Petition To Uphold Anti-Sodomy Law". The Huffington Post. Retrieved April 10, 2013. 
  4. ^ Johnson, Luke (June 25, 2013). "Ken Cuccinelli Appeals To Defend Virginia's Anti-Sodomy Law At Supreme Court". Huffington Post. 
  5. ^ "Court won't hear Va. appeal over sodomy law". USA Today. October 7, 2013. 
  6. ^ "Sodomy; crimes against nature, clarifies provisions of clause, penalty. (SB14)". Richmond Sunlight. Retrieved March 10, 2014. 
  7. ^ "SB 14 Sodomy; crimes against nature, clarifies provisions of clause, penalty". Retrieved 2014-06-29. 
  8. ^ Fox News: "Gay Marriage Amendment Passes in Virginia," November 7, 2006, accessed April 9, 2011
  9. ^ Laura Vozzella (January 23, 2014). "Va. Republicans ready to defend same-sex marriage ban". Washington Post. 
  10. ^ Michael Muskal (February 4, 2014). "Gay-marriage battle unfolds in Virginia, Utah courts". Los Angeles Times. 
  11. ^ Case Text: Bostic v. Rainey, Accessed February 15, 2014
  12. ^ 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. PACER Document 234. 
  13. ^
  14. ^
  15. ^ "Same-sex couples start marrying in Virginia". 
  16. ^ "The Two Women Pictured Here Just Made History in Virginia". 
  17. ^ Kumar, Antia (December 4, 2009). "Kaine plans to extend health benefits to same-sex partners". Washington Post. Retrieved June 11, 2010. 
  18. ^ 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. 
  19. ^ Davis, Patricia (March 5, 1999). "Court Finds Arlington's Benefits Policy Illegal". Washington Post. Retrieved January 23, 2014. 
  20. ^ Coolidge, David (April 27, 2000). "Virginia High Court Rejects Arlington's Domestic Partnership Policy". Catholic Herald. Retrieved January 23, 2014. 
  21. ^ "Arlington County et al. v. White et al." Virginia Lawyer's Weekly. April 21, 2000. Retrieved January 23, 2014. 
  22. ^ HB 2730 Hospital regulations; provision allowing patients to receive visits from whom they desire.
  23. ^ Human Rights Campaign: "Virginia Adoption Law" Archived 2012-01-18 at the Wayback Machine., accessed April 9, 2011
  24. ^ Washington Post: Anita Kumar, "Same-sex adoptions lose ground after Va. board vote," April 20, 2011, accessed April 20, 2011
  25. ^ "HB 189 Child-placing agency; shall not be required to participate in placement of child for foster care". Retrieved 2014-06-29. 
  26. ^ "SB 349 Child-placing agency; shall not be required to participate in placement of child for foster care". Retrieved 2014-06-29. 
  27. ^ Virginia Human Rights Act Archived 2002-09-13 at the Library of Congress Web Archives, accessed April 9, 2011
  28. ^ "Virginia – Sexual Orientation and Gender Identity Law and Documentation of Discrimination" (PDF). UCLA School of Law. September 2009. Retrieved May 23, 2013. 
  29. ^ "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. 
  30. ^ Helderman, Rosalind S. (2010-02-10). "McDonnell reverses predecessors' policy". Washington Post. Retrieved 2013-12-05. 
  31. ^ Va. Senate committee approves two anti-discrimination bills
  32. ^ "Virginia Senate passes bill to protect state LGBT employees from discrimination". JURIST Legal News & Research. January 26, 2013. Retrieved January 27, 2013. 
  33. ^ Equality Virginia: "Hate Crimes" Archived 2011-07-19 at the Wayback Machine., accessed April 9, 2011