A Misguided Letter

After barely two months in office, Virginia’s attorney general seems to have determined that his state’s legal policies are not controversial enough. How else to explain his decision to send a letter to Virginia universities and colleges instructing them to ban protections on gay rights? In the document, Attorney General Kenneth T. Cuccinelli II advised that, “The law and public policy of the Commonwealth of Virginia prohibit a college or university from including ‘sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like terms in its non-discrimination policy.” The attorney general may be right about a legal technicality. However, if addressing it means abolishing important protective measures, he should focus first on instituting equivalent state protections.

Cuccinelli may indeed have had sound legal reasoning behind his move. According to him, the Virginia General Assembly has never given specific authorization for such discrimination protections, and in-state colleges and universities are overstepping their bounds by employing them. The attorney general cited the Virginia Human Rights Act, which singled out race, color, religion, national origin, and sex as affiliations deserving of special protections—but not sexual orientation. He also pointed out that the General Assembly has voted 25 times not to include “sexual orientation” in various nondiscrimination measures since 1997.

However, this legal technicality is a small concern that Cuccinelli has pointed out in order to nullify more important protective measures. Article one, section one of the constitution of Virginia concerns the “equality and rights of man.” It states, “That all men are by nature equally free and independent and have certain inherent rights.” This statute clearly allows for myriad protections against discrimination, and Virginia’s institutions of higher education have simply been upholding a similar standard of rights. It should be the focus of the attorney general to bring the specific texts of Virginia’s laws in line with such overarching legal principles.

Moreover, Cuccinelli’s move is a targeted attack on a minority group. The Commonwealth of Virginia allows colleges and universities to operate under other policies without explicit permission; for example, a former Virginia assistant Commonwealth attorney pointed out that many places of higher education prevent their staff and students from carrying concealed weapons on the premises, even though this rule does not apply in the rest of Virginia. By singling out this specific legal point at this specific time, Cuccinelli’s letter seems suspiciously discriminatory itself.

Whether or not Virginia’s attorney general is pursuing ends other than the upholding of legal doctrine throughout the state, Virginia should pass laws to cover the protections he aims to take away. Steps are already being taken toward this end. Republican Governor Bob McDonnell has issued a directive banning state discrimination on the basis of sexual orientation. Virginia’s General Assembly and other legal bodies should follow his example and also uphold gay rights. The attorney general seems to be using this hot-button political issue to make a stand against important civil liberties protections, and the rest of the Commonwealth’s authorities need not allow him to do so.