EV Praises Board of Juvenile Justice for Protecting LGBTQ Youth; Criticizes Attorney General’s Continued Opposition to Nondiscrimination Rules

(Richmond, Virginia) James Parrish, the Executive Director of Equality Virginia, issued the following statement in response to today's action by the Board of Juvenile Justice to include protection against discrimination based on sexual orientation in new rules governing residential facilities overseen by the Department of Juvenile Justice Services.

"EqualityVirginiacontinues to be grateful that the Board and the professional staff of the Department of Juvenile Justice recognize the vulnerable position of the youth in their care who are lesbian, gay, bi-sexual, transgender and questioning (LGBTQ) and their ongoing need for protection from discrimination in non-residential and residential programs operated under the Department's auspices.

We particularly appreciate the Board's vote today (5-1) to continue to include specific language outlawing discrimination based on sexual orientation in rules governing residential facilities. The Board had been advised by the Attorney General's Office to strip such protections from the residential rules largely on policy grounds.  We are glad that the Board chose not to heed that advice and to continue in effect protections against discrimination in department residential programs that have been in place since 2005.

This is not the first time that the Attorney General's Office has tried to impose Attorney General Cuccinelli's personal views about gays and lesbians on agencies that deserve, but are not getting, objective legal advice.  An overwhelming majority of Virginians agree that discrimination based on sexual orientation and gender identity is wrong, and the Governor's Executive Directive No. 1 accurately says it is unconstitutional.  Representatives of the Attorney General's office have badgered and pressured citizens appointed to public boards, who take an oath to uphold the Constitution, to follow his policy directives, even threatening to refuse to represent them or suggesting they might be held personally liable in some future lawsuit if they don't.  It's time for this bullying to stop and for these board members to be advised objectively about their authority to act affirmatively to carry out their oaths."

The Board's action today amends the final rules for residential programs at Sections 35-41-560, 35-71-550, 35-101-650 of Title 6 of the Virginia Administrative Code to include the following language which tracks language included in the Governor's Executive Directive 1 :

Discrimination on the basis of race, religion, national origin, sex, or disability, and discrimination in violation of the Equal Protection Clause of the United States Constitution such as sexual orientation.

The Department already has rules in place governing non-residential programs, effective since July 1, 2011, that specifically protect youth from discrimination based on sexual orientation. In June of 2010 and again in June 2011, the Board approved new final regulations governing residential facilities that would have continued the protection against discrimination LGBTQ youth in existence since 2005.  Those final rules were not forwarded by the agency to the Virginia Register for publication “as soon as practicable” after adoption as required by Section 2.2-4013 B. of the Code of Virginia.  Rather, they have been languishing for more than a year in a post-adoption executive review process not authorized by the Administrative Process Act.  The action today modifies the language of the final rules slightly but, over the objection of the Attorney General's Office lawyer, continues to specifically ban discrimination based on sexual orientation. At the meeting today, Claire Guthrie Gastañaga, EV's Legislative Counsel, restated EV's reasons for urging the Board to leave the previously approved rules intact:

1)    LGBTQ youth are particularly vulnerable to abuse in juvenile justice facilities and need to know that the Board stands officially against discrimination based on sexual orientation;

2)    to do otherwise would be to take a step backward and remove protections from LGBTQ youth that have existed since 2005;

3)    removing protections from the new regulations would send a message that LGBTQ youth in residential facilities are now fair game for bullies and others who would subject them to different treatment because of who they are;

4)    removing protections from LGBTQ youth in residential facilities would mean that these particularly vulnerable children have less protection from discrimination and abuse than youth in non-residential programs under your jurisdiction; and

5)    continuing to include protections against discrimination based on sexual orientation in the rules governing residential facilities is consistent with, and authorized by, their sworn oath to uphold the constitutions of the United States and Virginia and to protect residents in Department facilities from unconstitutional discrimination.

Founded in 1989 as Virginians for Justice, Equality Virginia is the only statewide, non-partisan education, outreach and advocacy organization seeking equality for gay, lesbian, bisexual and transgender Virginians.