LGBTQ-affirming policies, protections established by General Assembly

The Virginia General Assembly established LGBTQ-affirming policies and protections, while a record number of anti-trans legislation has been introduced in state legislatures across the country.

The state became the first in the South to put a ban on the gay and transgender “panic defense” and will establish an LGBTQ+ advisory board to counsel the governor.

Del. Danica Roem, D-Prince William, said Virginia lawmakers were passing these policies now because of the state’s Democratic majority. Roem became the first openly transgender legislator in the country in 2018.

“The national trend is based on Republican trifecta, where you have a Republican governor and Republican majorities in both the State House and Senate,“ she said. “Virginia has Democratic trifecta.”

Roem introduced HB 2132, which bans the gay and transgender “panic defense,” a legal strategy that allowed defendants to support reasons for violence against people who were in the LGBTQ community based on sexual or gender identity.

The bill, which was signed into law by Gov. Ralph Northam on March 31, came from a constituent service request last July by a 15-year-old in Roem’s district, she said. 

Although Roem said that the panic defense has been questioned in the General Assembly before, lawmakers never considered it to be a problem in Virginia. 

The American Bar Association called for states to ban the defense nationwide in 2013, Roem said. Virginia is now the 12th state to pass legislation banning the defense, according to CNN. 

Although the legislation is now signed into law, Virginia was the only state where passing it became a partisan issue, Roem said. 

“This isn’t about even non-discrimination policy,” Roem said. “This is about murder and assaulting your constituents because they simply exist.”

At the national level, Democratic lawmakers introduced the Equality Act to expand the Civil Rights Act of 1964 and Fair Housing Act, according to The Washington Post. However, according to Them, Republican lawmakers have introduced a record number of anti-trans bills in state legislatures across the country.

In Virginia, the state Department of Education put forward new policy that took effect on March 6 requiring school divisions to accept students’ gender identities and allow students to have facilities and opportunities in line with their identities, according to the Post.

Since the policy was passed, two conservative groups, the Christian Action Network and Family Foundation of Virginia, are suing the department over the new policies that allow transgender students access to restrooms, locker rooms and changing facilities in line with their gender identities, according to the Post. 

The Christian Action Network is a religious advocacy group classified by the Southern Poverty Law Center as a hate group, and the Family Foundation of Virginia is a nonprofit lobbying against same-sex marriage and abortion rights and supporting conversion therapy, according to the Virginian-Pilot.

DeHaven Mays, a member of Side by Side, a youth center that supports trans youth, often sees trans youth simply seeking validation and acceptance from those around them, she said. There is a lot of misunderstanding surrounding trans youth, she said.

State legislatures are also addressing healthcare related to transgender people. Arkansas recently made national headlines for becoming the first state to ban doctors from providing gender-affirming treatment for trans minors. Since the law passed, suicides attempts by young people have risen in the state, according to Advocate.

In Virginia, Northam’s revised budget includes a line stating that transgender enrollees in the state’s expanded Medicaid program would have access to gender-affirming health care, according to the Virginia Mercury. Virginia, which has no direct policy on the issue currently, will become at least the 19th state to explicitly affirm that this care will be covered by Medicaid, according to the Mercury. 

Another policy change in Virginia regarding LGBTQ health care includes the decriminalization of HIV exposure, according to the Post. Lawmakers passed laws during the HIV epidemic amid widespread fear that criminalized people who “knowingly” exposed people to AIDS, according to the Post. With medical advancements since then, today, a person taking HIV medication and using condoms effectively has no risk of transmitting the disease during sex, according to the CDC. 

John Pagan, professor emeritus of the University of Richmond T.C. Williams School of Law and previous dean from 1997 to 2003, said that the most practically consequential legislation passed in Virginia was the ban on discrimination against sexual orientation and gender identity. Pagan, who teaches legal history, constitutional law and sexuality and the law, said there is no federal protection of this kind. 

Although the House passed this protection many times, it has been unable to make it through the Senate, leaving states to fill that gap, he said. 

Although the legislation regarding employment discrimination has been signed into law and will go into effect on July 1, 2021, along with other laws passed, the bill regarding harassment in the workplace has been recommitted to the Judiciary Committee, according to Equality Virginia.

House Joint Resolution 582 and its complementary resolution in the Senate redefine marriage as a fundamental right, repealing the state’s same-sex marriage prohibition and language saying marriage was a union between one man and one woman. These were both voted for by members of both parties. 

“The law serves a couple of purposes,” Pagan said. “One is that it actually imposes duties and converts rights, but the other thing is that it is a statement of values, and that's an independent function. 

“Right now, the Constitution says the value of his marriage is limited to opposite sex couples, and it's very important that that statement be changed.”

Although many LGBTQ-affirming bills were passed, not all introduced made it. A bill that would have stopped foster and adoption agencies from refusing LGBTQ homes because of religious or moral reasons was stuck in a Senate subcommittee, according to Equality Virginia. Other bills to expand the definition of bias-based profiling by police officers to include sexual orientation and gender identity and to expand the definition of hate crimes to those sparked by perception also did not pass, according to AP. 

Going forward, Pagan thinks that the use of religion as an excuse for discrimination will be the next frontier for LGBTQ policies, and determining how to set public recombinations with the freedom to exercise religion will be challenging, he said. 

“From the moment you come into the world, everything is cut and dried,” Pagan said. “And I think it's because they never want to think that they never want their children to be looking in the mirror and asking hard questions about themselves, it's the ultimate indeterminism, you know, that your birth certificate determines your entire life.

"It is no accident that this movement in the culture war is tied in with fundamentalist religion, the idea that, you know, ‘Here it is, we take it literally, you cannot question it, it's settled, doubt is bad.’ They never want questions to be raised.” 

Contact City & State editor Eileen Pomeroy at eileen.pomeroy@richmond.edu.