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Virginia Lawmakers Establish More LGBTQ Protections

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This year’s General Assembly session, the second in which Virginia’s legislative body has been under Democratic control, saw further improvements over last year’s already outstanding push for LGBTQ equality.

The Democratic-controlled Virginia General Assembly worked in its second year to establish more protections for LGBTQ people. 

Lawmakers tackled LGBTQ inequity in criminal justice and health care, reforming laws that advocates said were rooted in discrimination and could block access to needed services. An advisory board will be established to continue Virginia’s work with the LGBTQ community. 

Though some key legislation failed, advocates said the state is moving forward.

“Virginia continues to be a safer and more welcoming place for LGBTQ people and their families,” said Vee Lamneck, executive director of Equality Virginia, a nonprofit that advocates for LGBTQ people. “This is the second year in a row that we have seen significant life-changing legislation passed.”

Aging LGBTQ community

House Bill 1805 was introduced by Del. Dawn Adams, D-Richmond, to help ensure “that LGBT older people and people who are older living with HIV don’t fall through the cracks.”

 The bill expands on the federal Older Americans Act and calls on the state’s Department of Aging and Rehabilitative Services to prioritize older persons with significant social and economic needs. 

The bill defines economic needs as being at or below the poverty line. Social needs are caused by noneconomic factors such as physical disability, including HIV, or mental disability, the bill states. Social needs can arise from isolation, including isolation related to a history of discrimination. Such factors include language barriers, race, gender identity, gender expression or sexual orientation which affect an individual’s ability to perform daily tasks or threaten their capacity to live independently.

 “Sometimes having faced lifelong stigma and discrimination, sometimes at the hands of government and other providers, means that these populations have trouble accessing the assistance they need as they grow older,” Adams said. 

Adams said she has experienced discrimination as an LGBTQ individual, and she has witnessed it as a health care provider.

“What I can tell you as a 56-year-old lesbian, is that I am still shrouded in shame,” Adams said during a January committee meeting. “When I would go to the doctor 10 years ago, I would leave in tears.”

Del. Dawn Adams, D-Richmond (Photo via CNS)

Lamneck, who spoke in support of the bill, said there is a trend across the country and in Virginia of LGBTQ older persons “going back into the closet as they age because they are afraid of being mistreated.” Some LGBTQ individuals hide their sexual orientation when entering an assisted living facility, Lamneck said.

“We see LGBT older adults not accessing programs and services like Meals on Wheels,” Lamneck said. “Then Black and Latinx LGBT adults experience even higher marginalization resulting in even lower access to these services than white LGBT older adults.” 

The General Assembly also passed the companion bill, Senate Bill 1316, introduced by Sen. George Barker, D-Alexandria.

Criminal Justice Reform 

Virginia lawmakers passed several criminal justice reform bills that bring state law in more alignment with public policy.

HB 2132 introduced by Del. Danica Roem, D-Manassas, bans the use of a “gay panic defense” in cases where a defendant attacks a person for being a member of the LGBTQ community. The defense has been used in several Virginia cases, most recently in 2011. The defense was also used, albeit unsuccessfully, in the 1998 Matthew Shepard case.

“LGBTQ+ people are being violently harmed and viciously murdered simply because of who we are, and the noxious LGBTQ ‘panic’ defense allows attackers to escape the criminal sentences that would otherwise be imposed on them,” Wes Bizzell, president of the National LGBT Bar Association, stated in a press release.

Virginia is the 12th state to pass legislation that bans this defense, according to the policy organization Movement Advancement Project. The defense is also banned in the District of Columbia.

Del. Danica Roem, D-Prince William (Photo via CNS)

SB 1138, sponsored by Sens. Mamie Locke, D-Hampton and Jennifer McClellan, D-Richmond, repealed the crime of donating blood, organs and tissue by those who have HIV. Donors must be in compliance with the HIV Organ Policy Equity Act. The measure also removes HIV, AIDS, syphilis and hepatitis B from the list of infectious biological substances under the current infected sexual battery law, opting to use the language “sexually transmitted infection.”

The bill sought to reduce the felony charge of infected sexual battery for people who engage in risky sexual activity after testing positive for a sexually transmitted infection. The crime is punishable by a Class 6 felony, which carries a punishment of no more than five years in prison or a $2,500 fine. The Senate voted to lower the Class 6 felony to a Class 1 misdemeanor. The House rejected this and the final bill was passed with the felony penalty intact. 

Organizations such as Equality Virginia and Ending Criminalization of HIV and Overincarceration in Virginia, known as ECHO VA, petitioned Northam to amend the bill and remove the felony penalty.

HIV discriminatory laws have historically been used to single out members of the LGBTQ community since the beginning of the epidemic when the virus was known as the “gay plague,” according to Avert, the national HIV and AIDS research organization. These laws have also resulted in a stigma against those living with HIV, regardless of sexual orientation.

Advisory board

HB 2130, introduced by Del. Alfonso Lopez, D-Arlington, creates a Virginia LGBTQ + Advisory Board in the executive branch of state government. The executive board will advise the governor on the economic, professional, cultural, educational and governmental links between the commonwealth and the LGBTQ community.

The 26-member board is modeled after the existing Latino Advisory and Asian Advisory boards, Lopez said. The governor will appoint 21 non-legislative citizens to the board; at least 15 of the members shall identify as LGBTQ.

“In just the last decade, Virginians ended marriage inequality, passed legislation that banned anti-LGBTQ discrimination in housing and employment, and won the right to get licenses and IDs with a nonbinary gender marker, but there’s still work to do,” Lopez said to members of the House in January. 

Marriage equality 

House Joint Resolution 582, introduced by Lopez and Del. Mark Sickles, D-Fairfax, repealed outdated language in the state code that was invalid as a result of the 2015 U.S. Supreme Court decision in Obergefell v. Hodges. Virginia’s current law defines marriage as a union between only one man and one woman. 

Senate Joint Resolution 270 is complementary to HJ 582. The resolution redefines marriage as a fundamental right, rather than a union between only one man and one woman. 

Lawmakers in both chambers crossed party lines to vote for the bills. Lawmakers passed legislation last year that removed the same-sex marriage ban from Virginia’s Constitution. The repeal came six years after same-sex marriage became legally recognized in Virginia and five years after it was legalized across the country.

Failed bills

Several LGBTQ-centric bills were introduced this session that did not make it to the governor’s desk. 

LGBTQ adoption

Del. Mark Levine, D-Alexandria, introduced HB 1932, to keep foster and adoption agencies from refusing to place children in LGBTQ homes because of religious or moral convictions or policies. Agencies who refuse LGBTQ couples are protected from legal consequences under the state’s “conscience clause.” This law applies to private and state-licensed agencies. 

Del. Mark Levine, D-Alexandria (Photo via CNS)

Virginia funds foster and adoption agencies despite the conscience clause. A similar law exists in other states where federally-funded agencies can deny same-sex couples and non-Christian couples. Levine said the state should not be required to fund these organizations and that if an agency discriminates, they should “do it on their own dime.”

Levine said the current law harms LGBTQ kids and sometimes leaves them placed in homophobic environments.

“It basically tells kids ‘you’re unwanted, you’re unloved, you’re not good enough,’” Levine said. “It just consigns people to this hierarchy of ‘straight is better than gay’ whether it’s the kids or the parents.” 

Adoption agencies are not required to note on their website or any other forum whether they do not place children with certain families. 

“If you’re actively practicing religious discrimination, list it,” Levine said. “At least tell the public what you do.” 

The House narrowly passed the bill, but it was left in a Senate subcommittee. 

Bias-based profiling

Levine’s bill to expand the definition of bias-based profiling to include sexual orientation and gender identity also narrowly passed the House but faltered in the Senate. Bias-based profiling is when a police officer takes action solely based on an individual’s real or perceived race, age, ethnicity or gender.

 HB 1948 required officers to report certain behavior among officers. Any officer who discriminated against or witnessed another officer discriminate against any individual without reporting it would be subjected to disciplinary action. The original bill also required on-duty law enforcement officers who witnessed a person suffering from a bodily injury or life-threatening condition to provide immediate aid.

Law enforcement testified against the bill during a Senate committee meeting. Sen. Chap Petersen, D-Fairfax, argued that the original statute, introduced and passed during the 2020 special session, addressed the issue of “driving while Black.” Petersen said he was unaware of an issue of “driving while gay.”

Almost 30 percent of transgender people reported being harassed by police, according to the National Transgender Discrimination Survey. Transgender people of color are six times more likely to experience physical violence from the police compared to white cisgender survivors and victims, according to a 2013 study by the National Coalition of Anti-Violence Programs. 

Hate crime expansion

Sen. Ghazala Hashmi, D-Chesterfield, introduced SB 1203, to expand the definition of hate crimes to include crimes against people based on perception. 

Lamneck said expanding the categories within the hate crimes law will ensure diverse members of the community are protected and that those who commit violent crimes are held appropriately responsible. 

Opponents of the bill said it was too broad and could be misused. The bill died in committee when four Democratic legislators crossed party lines to vote against it. 

Hashmi and Levine will consider reintroducing their failed bills next session.

Lamneck said Equality Virginia will host an event this spring or summer to hear from the community about legislative priorities for the next session. 

Written by Cierra Parks, Capital News Service. Top Photo: Man holding pride flag; photo by Brianna Swank from Pexels.

Virginia General Assembly Advances Bill To Modernize HIV Laws

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The bill, introduced by state Senators Mamie Locke and Jennifer McClellan, would halt a variety of ways that Virginia’s legal system currently discriminates against people with HIV.

The General Assembly advanced a bill this week that lawmakers say will modernize Virginia’s current HIV laws. The amended measure has passed both chambers, but lawmakers must now accept or work out differences in the bill. 

Senate Bill 1138, introduced by Sens. Mamie Locke, D-Hampton, and Jennifer McClellan, D-Richmond, also removes a law that prohibits the donation of blood and organs by people with HIV and other sexually transmitted diseases. A 21-17 vote along party lines pushed the bill out of the Senate earlier this month. The House of Delegates passed the bill Friday in a 56-44 vote. 

The bill repeals a law that makes it a felony for HIV-positive people to sell or donate blood, body fluids, organs, and tissues. Donors must be in compliance with the HIV Organ Policy Equity Act. This state legislation does not apply to national organizations such as the American Red Cross. The organization implements FDA guidelines that require men who have sex with men to defer from sexual intercourse for three months before donating blood. 

The measure also removes HIV, AIDS, syphilis, and hepatitis B from the list of infectious biological substances under the current infected sexual battery law, opting to use the language “sexually transmitted infection.” The crime is punishable by a Class 6 felony, which carries a punishment of no more than five years in prison or a $2,500 fine. In 2019 and 2020, three offenders were convicted of such crimes, according to data provided in the impact statement by the Virginia Criminal Sentencing Commission. The Senate voted to lower the penalty from a Class 6 felony to a Class 1 misdemeanor. 

Opponents of the bill spoke against reducing the penalty for such crimes. The House vote Friday included an amendment to keep the Class 6 felony punishment.

The bill adds language that HIV will not be included in the current statute as an infectious biological substance. It is a Class 5 felony to cause malicious injury by means of an infectious biological substance. The offense is punishable by five to 30 years in prison. 

Sen. Jennifer McClellan. Photo via Jennifer McClellan/Facebook

McClellan said current HIV laws put in place during the 1980s AIDS epidemic have proven ineffective from a public health perspective. She said they are counterproductive and were implemented years ago to receive federal funding.

“There are other laws that could be used to criminalize intentionally infecting someone with anything,” McClellan said. “There’s no need to specifically target and single out for HIV-positive status.”

LGBTQ and HIV advocacy groups hope the bill will end the stigma attached to HIV-positive people and also LGBTQ members who are not HIV positive.

The bill has the support of organizations such as the Center for HIV Law and Policy, Equality Virginia, the Zero Project, Ending Criminalization of HIV and Overincarceration in Virginia, or ECHO VA, and the Positive Women’s Network – USA. 

Deirdre Johnson, co-founder of the ECHO VA Coalition, said the bill is a step in the right direction for ending the stigma against those with HIV. 

“One of the biggest things with the stigma has been the fear of knowing that you could be criminalized for having HIV, period, and then you know, of course, that deters people from getting tested,” Johnson said.

Johnson said that HIV stigma and criminalization have a profound effect on people of color and other marginalized communities who already experience health care inequity and mistrust. 

“Virginia is for lovers and I really want us to encompass that slogan, including people living with HIV and a perceived risk for HIV,” Johnson said

Cedric Pulliam, co-founder of ECHO VA, said lawmakers in the 1980s and 1990s saw HIV as something the public needed to be protected from when it was and continues to be a public health concern. There is now a call for state legislators around the country to change HIV criminalization laws.

Pulliam said that national agencies are reaching out to state legislators to help undo prior initiatives that limit HIV prevention, treatment, and services. 

“We need your help from the state to really, basically right this wrong that we created decades ago,” Pulliam said of the agency outreach.

Sen. Mamie Locke. Photo via Library of Virginia

Pulliam called the move to decriminalize health status a “liberation” for those living with HIV because they would no longer have a target on their back. He also said that laws specifically target people with HIV. In Virginia, syphilis and hepatitis also are criminalized, but other chronic illnesses and diseases are not, he said.

Virginia is currently one of 37 states as of 2020 that have HIV discriminatory laws, according to the Centers for Disease Control and Prevention.

“If the federal government has really been calling for states to make this change, it’s time for Virginia to be one of the next and not be, you know, the last,” Pulliam said.

Written by Cierra Parks, Capital News Service. Top Photo: Virginia Capitol. VCU CNS photo by Conor Lobb.

Lawmakers Kill Bill Requiring Officers Render Aid, Report Wrongdoing

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The bill, introduced by Del. Mark Levine, would have protected citizens against bias-based profiling on the basis of sexual orientation and gender identity, as well as requiring police to provide aid to the injured and report misconduct by other officers.

A Senate committee recently killed a bill intended to minimize police misconduct and incentivize accountability among law enforcement. 

House Bill 1948, introduced by Del. Mark Levine, D-Alexandria, required law enforcement officers to report misconduct by fellow officers. Another part of the measure, which some opponents called too subjective, was that on-duty officers provide aid, as circumstances objectively permitted, to someone suffering a life-threatening condition or serious bodily injury. 

The bill also expanded the current definition of bias-based profiling, which is prohibited in Virginia, to include gender identity and sexual orientation. Bias-based profiling is when a police officer takes action solely based on an individual’s real or perceived race, age, ethnicity, or gender. 

The measure passed the Virginia House of Delegates last month on a 57-42 vote and the Senate Judiciary committee killed the bill this week on a 9-6 vote. Levine introduced a similar bill last year that also failed in the Senate.

“I call HB 1948 my good apple bill, because it separates the vast majority of law enforcement that are good apples from the few bad apples that are not,” Levine said when the bill was before the House. 

Delegate Mark Levine. Photo via Facebook

Dominique Martin, a policy analyst for New Virginia Majority, said before a House panel that the bill would establish a mechanism to create accountability among officers. 

“One of the major themes when discussing long lasting approaches to police reform is the need for change at the institutional level,” Martin said. “One aspect is addressing organizational culture. It incentivizes a more accountable culture amongst law enforcement.”

Vee Lamneck, executive director for Equality Virginia, spoke in favor of the bill.

“LGBT people, especially Black, Latinx, Indigenous LGBT people, are more likely to be victimized by discriminatory police practices,” Lamneck said. “Transgender women are six times more likely to endure police violence and Black transgender women experience even higher rates of being antagonized and criminalized by police.”

HB 1250, also known as The Community Policing Act, took effect on July 1, 2020. The law prohibits police from engaging in bias-based profiling while on duty.

Dana Schrad, executive director of the Virginia Association of Chiefs of Police, expressed concern with the part of Levine’s bill that required officers to provide aid to someone with a life threatening injury.

“The concern is that a lot of times in situations where you don’t know whether life-saving aid is necessarily required in that instance, the outcome may be that someone is injured more than is immediately recognizable,” Schrad said.

Schrad said the bill was a response to events such as the death of George Floyd, a 46-year-old Black man who died in police custody. Former Minneapolis police officer Derek Chauvin has been charged with second-degree murder and will stand trial in March. The three other officers, J. Alexander Kueng, Thomas Lane, and Tou Thao, will stand trial in August on charges of aiding and abetting second-degree murder.

 “It’s the George Floyd response that the officers there did not render aid,” Schrad said.

John Clair, police chief for the Marion Police Department, in Smyth County, agreed with Schrad.

“We’re police officers, medical aid should be left to medical professionals,” Clair said. 

Virginia State Police Ford Crown Victoria, by JLaw45, licensed with CC BY 2.0.

The requirement to render aid is not in the state code and though it is a requirement already for many districts, there is a need for consistency across the commonwealth, Levine said.

“I’m confident that the vast majority would do so anyway,” Levine said. “This makes it a matter of policy; it will be taught in training.”

Several bills centered on police reform have died during this General Assembly session. A measure by Del. Elizabeth Guzman, D-Woodbridge, would have established data collection on use of force incidents that would be reported to the superintendent of Virginia State Police. HB 2045 and SB 1440 would have eliminated qualified immunity. The bills would have made it easier for plaintiffs to sue police officers in civil court for depriving the plaintiffs of their constitutional rights. Both bills were struck down within the last two weeks. A similar measure from Del. Jeff Bourne, D-Richmond, who patroned HB 2045, was also struck down during the 2020 General Assembly special session. 

Schrad said Levine’s bill and the qualified immunity bill would have taken away legal protections and created a strict liability for police officers. Opponents of the qualified immunity bills also said there would be a negative impact on hiring new police recruits.

“These kinds of issues, all taken together, create such a standard of both strict liability, and no protections for law enforcement officers that we’re really throwing them under the bus,” Schrad said.

Levine said his bill was both modest and large. 

 “It’s large because it really tries to make it clear there is no thin blue line, that the goal of law enforcement is to serve the public first; and you should not be covering up bad acts, severe acts of wrongdoing, that’s not technical or minimal, by your fellow officer,” he said.

Written by Sarah Elson, Capital News Service. Top Photo: Police square off with protesters at the JEB Stuart monument in Richmond on June 21. Photo by Andrew Ringle.

Virginia Senate Committee Rejects Hate Crime Expansion Bill

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Sen. Ghazala Hashmi’s bill to expand hate crimes to include crimes based on perception — which would have had the effect of protecting gender expression, not covered under current hate crime statutes — failed in the Virginia state Senate after backlash from both parties.

Legislators attempted to pass a bill that would expand the definition of a hate crime to include crimes against people based on perception, but opponents said the bill was too broad and could be misused. 

The Senate Judiciary Committee passed the bill by for the year late last month. Four Democrats strayed from party lines to vote against the bill after much debate.

The current statute defines hate crime victims as those who are maliciously targeted based on race, religion, gender, disability, gender identity, sexual orientation, or ethnicity. Legislators passed the legislation last year during the General Assembly session.

Senate Bill 1203, proposed by Sen. Ghazala Hashmi, D-Richmond, aimed to ensure that someone who maliciously attacks a person based on their perception of that person’s membership or association within one of the aforementioned groups is held to the same standard as someone who attacks a person they know is a member of one of the groups. Hashmi’s bill also added color, national origin, and gender expression to the list of protected classes.

Hashmi cited an incident during Black Lives Matter protests last summer in which Harry H. Rogers, an avowed high-ranking member of the Ku Klux Klan, drove his truck into a crowd of protesters. Henrico’s Commonwealth Attorney Shannon Taylor said her client, who was hit, was not protected under current hate crime legislation because he is white. She said Rogers drove his truck with the intention to disrupt the protests.

“Our current law looks more at the victim and the victim’s characteristics than it does looking at the offender and his intent,” Taylor said.

Sen. Ghazala Hashmi. Taken from her campaign’s website.

Vee Lamneck, the executive director of Equality Virginia, said hate crimes are more than acts of violence. Such crimes are committed with the intention of inciting fear and dehumanizing groups, Lamneck said.

“Individuals with intersecting identities, especially Black, Latinx and Indigenous LGBTQ people are exposed to higher rates of violence,” Lamneck said. “Redefinition of the categories in this bill will help to further ensure that all diverse members of our communities are sufficiently protected by the law from hate crime violence and that perpetrators of such violence are held appropriately responsible.”

Sen. Chap Petersen, D-Fairfax, said during the committee hearing that the bill was a massive expansion of the current statute. Petersen said the proposed changes would be “pretty far off-field from the original purpose.”

Opponents, including the Virginia Association of Criminal Defense Lawyers, said the bill was too broad and could allow for the exploitation of who was a hate crime victim. Legislators pondered over if this meant a person of color could be charged with a hate crime for assaulting a white person and postulated several scenarios of how the bill could be misused.

Emanuel Harris, a representative for the Black Coalition for Change, called the questioning of the protection of white supremacists puzzling, offensive, and laughable.

“The history has shown that the Black community is the one being intimidated, not the other way around,” Harris said during the public comment portion of the meeting. Harris said the original statute needs to be expanded.

“I am offended that folks brought this and then clouded, or wrapped it up in BLM, and suggested that if we vote against it, somehow we’re not supporting the prosecution of hate crimes, because that is not what we are doing,” said Sen. Joseph Morrissey, D-Richmond. “This bill is offensive in so many different ways.” 

Morrissey was a co-patron for the hate crime legislation that passed in 2020.

Hashmi said Morrissey was approaching the bill from a position of privilege, at which point Senate Minority Leader Thomas Norment, R-Williamsburg, interrupted with an “Oh my God.” Hashmi continued and said the bill addressed race as well as oppressed and terrorized religious and LGBTQ communities. 

Sen. Joe Morrissey questioned several aspects of the bill and said that he found the bill “offensive in so many different ways.” Photo via VCU-CNS

The Anti-Defamation League helped with the bill’s language. Meredith R. Weisel, representing the ADL, said the bill is important because it would help ensure that offenders who are mistaken about the victim’s protected characteristics can still be held accountable for a hate crime under the law.

Brittany Whitley, chief of external affairs and policy with the Office of the Attorney General, spoke in support of the bill along with other citizens and attorneys.

Hashmi said in an email that she hopes to refine the language in the bill and will consider reintroducing it next year. 

“Addressing hate crimes is important for the well-being of our communities: hate crimes are designed to harm and inflict pain on not just the targeted individual(s) but also to intimidate and terrorize entire groups of people,” she said.

Written by Cierra Parks, Capital News Service. Top Photo: June march for Black Lives Matter on Monument Avenue. Photo by Ada Romano.