As was made clear during the previous public comment period, the Virginia Department of Social Services cannot usurp the role of the Virginia General Assembly by altering its expressed public policy. Protection for “sexual orientation” status is conspicuously absent from the Virginia Code, despite various efforts to enact legislation that would add “sexual orientation” as a protected class. As written, the proposed regulation stays within the limited bounds of the Department’s granted authority, but should the Department amend the regulation to include “sexual orientation”, such action would be without authority and thus invalid. 

 

In 2006, Governor McDonnell, then acting as Attorney General of Virginia, concluded that an executive order changing the Commonwealth’s nondiscrimination policy to include “sexual orientation” as a protected class was unconstitutional. His opinion stated, “the addition of sexual orientation as a protected employment class within state government was intended to, and in fact did, alter the public policy of the Commonwealth. . . . [C]hanging the public policy of the Commonwealth is within the purview of the General Assembly; therefore, that portion of Executive Order No. 1 is beyond the scope of executive authority and, therefore, unconstitutional.” Va. A.G. Op. No. 05-094, 2006 Va. AG LEXIS 12 (Feb. 24, 2006) (emphasis added).

 

Previous Attorney General opinions similarly concluded that the addition of “sexual orientation” status as a protected class in Virginia would require the approval of the General Assembly. See, e.g., Va. A.G. Op. No. 02-089, 2002 Va. AG LEXIS 79 (Nov. 8, 2002) (“[W]ithout enabling legislation, the Fairfax County School Board has no authority to include sexual orientation in its nondiscrimination policy.”); Va. A.G. Op. No. 02-029, 2002 Va. AG LEXIS 64 (Apr. 30, 2002) (concluding that enabling legislation is required to allow “(1) Fairfax County to prohibit discrimination due to sexual orientation or (2) the Fairfax County Human Rights Commission to investigate cases involving alleged discrimination based on sexual orientation”). Therefore to include “sexual orientation” in the proposed regulation would amount to legislating public policy through executive regulation.

 

 

The ACLJ supports the invaluable work of faith-based adoption agencies, and strongly urges that gender, sexual orientation, and family status not be re-listed as protected classes in 22 VAC 40-131-170(B). To do so would further a political agenda at the expense of Virginia’s children and faith-based adoption agencies. The present regulation protects religious freedom and the sound policy of making adoption about the best interest of the child, not the alleged right of an individual to parent.