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|
|Discrimination protections||Sexual orientation and gender identity protections in state employment|
|Same-sex marriage legal since 2014|
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 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
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.
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.
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. 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. 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.
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. 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." Governor Terry McAuliffe, also a recently elected Democrat, backed Herring's refusal to defend the ban.
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. 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. 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.Same-sex marriage in the U.S. state 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. Since then Virginia has performed legal marriages of same-sex couples and recognized out-of-state marriages of same-sex couples.
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. 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 state's health plan required authorizing legislation. His ruling ended the administrative process Kaine had initiated.
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 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.
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.
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.
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.
Virginia law does not address discrimination based on gender identity or sexual orientation in private sector employment. Arlington County and the independent city of Alexandria prohibit discrimination in employment for sexual orientation only.
On January 11, 2014, Governor Terry McAuliffe's first executive order prohibited employment discrimination in public sector employment. 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.
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.
The Virginia State Senate has passed legislation to prohibit the state government from discriminating against its employees based on sexual orientation in 2010, 2011, and 2013, but the Virginia House of Delegates did not vote on any of those measures.
Virginia's hate crime laws address violence based on race, religious conviction, color or national origin, but not on sexual orientation or gender identity.
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