Virginia Attorney General Mark Herring issued an advisory opinion Tuesday stating that, despite a lack of official court rulings on the subject, discrimination on the basis of sexual orientation or gender identity would likely be ruled illegal in the commonwealth.
Herring's opinion was issued in response to questions from three Virginia lawmakers seeking clarification of the state's existing laws barring sex discrimination, and whether those statues could be interpreted to include sexual orientation and gender identity.
In his opinion, Herring said Virginia's Human Rights Act, and subsequent legislation, established a policy of "protect[ing] all individuals within the Commonwealth from unlawful discrimination on the basis of sex.
"I conclude that those statues most likely prohibit discriminatory conduct against LGBT Virginians when that conduct is based on sex-stereotyping or on treating them less fairly on account of their gender."
He added that, because the Virginia Human Rights Act "includes all discriminatory conduct prohibited under federal law," courts would likely strike down any state legislation that violated Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.
Delegate Dave LaRock (R-Loudoun), one of the legislators who requested Herring's opinion on the issue, said in a press release that the attorney general, "cites no Virginia law specifically stating that the meaning of the word ‘sex’ as used in Virginia laws pertaining to nondiscrimination encompasses sexual orientation and gender identity."
LaRock added that Herring's opinion "contained numerous references to the terms sexual orientation and gender identity; yet, both that and today’s advisory opinion cite no definition for those terms in Virginia law.”
LaRock promised to take his opinion "into consideration" as the General Assembly works "to clarify Virginia’s laws in a manner that provides necessary protections for all Virginians."
The conservative Family Foundation dubbed Herring's opinion "politically motivated," and charged that the attorney general with "basing his opinion on the opinion of the Obama administration, the opinion of his friends at the ACLU, and his political aspirations."
Herring, a Democrat, is seeking re-election in 2017.
Gay and transgender rights have risen to national prominence in recent weeks, as states such as North Carolina passed laws preventing local governments from adopting measures banning discrimination based on sexual orientation or gender preference.
North Carolina's legislation limits the definition of an individual's sex to his or her sex at birth. One result is that all government buildings must have single-sex restrooms.
Opponents have called the law an attack on the gay and transgender communities.
On May 9, the U.S. Department of Justice filed suit against the state of North Carolina, the University of North Carolina (UNC) and the North Carolina Department of Public Safety (DPS) alleging that the state has discriminated against transgender individuals, in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and the Violence Against Women Reauthorization Act of 2013.
North Carolina also filed suit against the Justice Department, seeking clarification of existing federal discrimination laws.
In April, the Fourth Circuit Court of Appeals in Richmond ruled that transgender teenager Gavin Grimm could proceed with his lawsuit against the Gloucester County school system over its restroom policies for students.
The county school board requires transgender students to use a unisex restroom. Grimm, who was born female, has requested to use the male restroom.