Va. gay-rights group seeking protections at local level

Unsuccessful in attempts to add new discrimination protections into state law, a gay-rights group continues to push for similar policies on the local level.

Of the roughly two dozen Virginia localities with policies in place to protect gay and lesbian government workers, South Hampton Roads is home to two – Chesapeake and Virginia Beach.

Norfolk may soon join them.

While the city doesn’t include sexual orientation in its employment policy, Norfolk Mayor Paul Fraim said the guiding principle “is not to discriminate against anyone for any reason.”

Fraim said City Attorney Bernard A. Pishko told him City Manager Marcus Jones could put that policy in writing without City Council’s approval. Fraim said he will recommend that Jones do so.

Equality Virginia, a gay-rights group, wants such protections so public workers have protection from discrimination and a mechanism to lodge complaints.

Michael Hamar, a gay attorney from Norfolk who represented a state worker who alleged he was fired over his sexuality, thinks localities explore enhanced legal protections to attract talent.

But even as jurisdictions consider adding them, questions remain about how much legal weight these policies have.

Past guidance from the Virginia Attorney General’s Office suggests local governments lack the authority to impose them unless the municipalities are granted that power by the General Assembly.

In 2006, then-Attorney General Bob McDonnell issued an opinion that it was improper to include sexual orientation in a state nondiscrimination executive order issued by former Gov. Mark Warner and continued by then-Gov. Timothy M. Kaine.

McDonnell reasoned the power to enact that kind of policy change rests with the legislature.

Likewise, Attorney General Ken Cuccinelli last year advised state colleges and universities that they are prohibited from establishing similar legal protections.

When McDonnell became governor, he did not mention sexual orientation in an executive order on employment policy. But after Cuccinelli’s advice to colleges sparked a controversy, McDonnell followed up with a directive to state executive branch agencies that prohibits “discrimination based on factors such as one’s sexual orientation or parental status” because it violates the Equal Protection Clause of the U.S. Constitution.

Based on that, Equality Virginia legal counsel Claire Guthrie Gastañaga believes “local nondiscrimination policies are … eminently defensible legally although, unfortunately, vulnerable to misguided attacks.”

Family Foundation president Victoria Cobb disagrees.

Localities that approve those policies may succeed in making a political statement but not much else, said Cobb, whose organization has opposed efforts to expand gay rights.

To Cobb, the legal question was settled in an April 2000 state Supreme Court ruling against Arlington County’s plan to extend health benefits to employees’ domestic partners, including those of the same sex. The court found that it violated the Dillon Rule, which holds that local governments have only those powers granted to them by the state legislature.

Others aren’t so sure.

Bill Hefty, an attorney and lobbyist who specializes in local government issues, isn’t aware of definitive case law on the subject.

“You never know where the line is with the Dillon Rule,” he said. “It depends on the individual circumstance.”

Pilot reporter Harry Minium contributed to this report.