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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.

Marijuana Possession and Cultivation Could Be Legal By July

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Marijuana was originally scheduled to become fully legal in Virginia in 2024, but now Governor Northam has listened to advocates and is now working to move up the timeline, potentially making it legal this summer.

Virginia Gov. Ralph Northam amended legislation to accelerate the legalization of marijuana possession and home cultivation in the state to July as opposed to 2024.

“Virginia will become the 16th state to legalize marijuana — and these changes will ensure we do it with a focus on public safety, public health, and social justice,” Northam stated in a release.

The governor proposed changes to House Bill 2312 and Senate Bill 1406, which passed earlier this year during the Virginia General Assembly’s special session. The bills legalized marijuana possession and sales by Jan. 1, 2024, but marijuana legalization advocates and Democratic lawmakers lobbied to push up the date for possession. 

“This is an historic milestone for racial justice and civil rights, following years of campaigning from advocates and community groups and a strong push by the Virginia Legislative Black Caucus,” the group Marijuana Justice stated in a press release. 

Marijuana Justice seeks to legalize the use and possession of marijuana. The group advocates for communities most impacted by the criminalization of drugs with their “legalize it right” campaign.

The bills allow adults 21 years of age or older to legally possess up to one ounce of marijuana if they don’t intend to distribute the substance. Virginia decriminalized marijuana last year and reduced possession penalties to a $25 civil penalty and no jail time for amounts up to an ounce. In the past, possessing up to half an ounce could lead to a $500 fine and 30 days in jail. 

Individuals can cultivate up to four cannabis plants without legal repercussion, with punishments ranging from misdemeanors to jail time if over the limit. The governor’s amendments would allow households to grow up to four plants beginning July 1. The plants would need to be labeled with identification information, out of sight from public view, and out of range of people under the age of 21.

Legislators will review the governor’s proposals during the General Assembly’s reconvened session on April 7, according to Del. Kaye Kory, D-Falls Church, one of more than two dozen legislators who sponsored the House bill. 

Chelsea Higgs Wise, executive director of Marijuana Justice, said legalizing simple marijuana possession now rather than later is important for racial justice. 

“Waiting until 2024 to legalize simple possession and therefore stop the desperate policing is allowing this continued bias enforcement against Black Virginians to continue for three years,” Wise said. 

Accelerating the legislative timeline is key, Kory said. 

“The figures show that it is much more common for a Black or Brown person to be charged with possession,” Kory said. 

A state study released last year found that from 2010 to 2019 the average arrest rate of Black Virginians for marijuana possession was more than three times higher than that of white residents for the same crime — 6.3 per 1,000 Black individuals and 1.8 per 1,000 white people. This is despite the fact that Black Virginians use marijuana at similar rates as white residents. The conviction rate was also higher for Black individuals. Northam stated that people of color were still disproportionately cited for possession even after marijuana was decriminalized.

The original legislation established the Virginia Cannabis Control Authority as the regulatory structure for the manufacture and retail sale of marijuana and marijuana products. 

The governor’s amendments would allow the authority to revoke a company’s business license if it interfered with union organizing efforts; failed to pay a prevailing wage as defined by the U.S. Department of Labor; or classified more than 10% of employees as independent contractors.

Lawmakers grappled with the dangers of juvenile use of marijuana, Kory said, and the impact of use on developing brains. 

Marijuana Justice wants to remove the delinquency charge that designates marijuana possession a crime, not a civil penalty, if committed by someone underage. The penalty is still up to $25. 

“Instead of punishment, young people should be evaluated for appropriate services that address the root causes of their usage,” Marijuana Justice stated.

The amendments would fund a public awareness campaign on the health and safety risks of marijuana. The changes also would train law enforcement officers to recognize and prevent drugged driving. Northam stated that his amendments include “explicit language directing ongoing support for public health education.”

The bill established a Cannabis Equity Reinvestment Board tasked with providing youth mentoring programs to marginalized youth and those in foster care, as well as providing scholarships to children who have been negatively impacted by marijuana in their family or community. 

The current expungement of marijuana-related crimes is set for July 1, 2025. Northam’s new amendments call for marijuana-related criminal records to be expunged and sealed “as soon as state agencies are able” and to “simplify the criteria” for when records can be sealed. This will allow individuals convicted with marijuana offenses to be resentenced, according to the new amendment.

The bills originally passed along party lines. No Republicans voted for either bill, and several Democrats in the House did not vote on either measure. Sens. Richard Stuart, R-Montross, and Jill Vogel, R-Warrenton, stated that the governor’s amendments helped assuage their original concerns.

The conservative, faith-based organization The Family Foundation told supporters Thursday to contact their representatives and urge them to vote against the accelerated timeline. 

The organization stated that violent and nonviolent crime rates have increased in states that have legalized marijuana, citing an opinion piece from a police defense group.

“It’s always been about generating more tax revenue to finance the ever-expanding state bureaucracy, creating massive fortunes for those who would use marijuana (like gambling) to prey on our most vulnerable citizens, and catering to a generation increasingly void of moral standards,” stated Victoria Cobb, the foundation’s president.

Written by Sam Fowler, Capital News Service. Top Photo: Members of the group Marijuana Justice at a press conference in January 2020 to support the legalization of marijuana in the commonwealth. Photo by Emma Gauthier/CNS.

The End Of Virginia’s Death Penalty

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Thanks to Governor Ralph Northam and the General Assembly, Virginia’s long tradition of imposing the death penalty is headed for a permanent end in the near future. We look back at the history to see why this is a positive development for the commonwealth.

With Governor Ralph Northam expected to sign a bill that passed through the General Assembly earlier this year, abolition of the death penalty in Virginia seems all but certain.

“It’s really a revolution in criminal justice reform for Virginia, because we’ve executed more people in Virginia than in any other state, including Texas,” said Dale Brumfield, field director for Virginians for Alternatives to the Death Penalty (VADP) and an expert on capital punishment in Virginia.

“We’ve executed 1,390 people since 1608, so for Virginia, the former Capitol of the Confederacy, the most killing state in the United States, to end it is just a jaw-dropping revolution in criminal justice reform.”

As Virginia moves into a new era of criminal justice reform, Brumfield reflects on a painful past.

1608 – Captain George Kendall is executed by firing squad for treason in colonial Jamestown.

1632 – Jane Champion becomes the first woman executed in the state of Virginia.

“She was a married woman, but she had an affair with another colonist in Jamestown, and she got pregnant by him,” Brumfield said. “So she was facing double jeopardy: she got pregnant out of wedlock by another man, and she was having an affair, so she was in a no-win situation.” 

Champion concealed the birth of her child, which was a capital offense in and of itself at the time. She was eventually convicted for infanticide, but Brumfield says that there is compelling historical evidence to suggest the child was stillborn. As for the man she had an affair with?

“[He] was supposedly scheduled to be hanged also, but there’s no record of him ever being hanged,” Brumfield said. “They don’t think he ever was.”

So began a long and painful history of unjust executions in Virginia.

“Since then, Virginia just started executing like sons of bitches,” Brumfield said. “We just kept killing and killing and killing. Throughout the colonial era, Virginia executed 500 slaves before emancipation. That accounts for 86 percent of all slave executions nationwide.” 

According to Brumfield, there were 66 crimes that counted as capital offenses for enslaved people. “They couldn’t turn around without committing a capital crime back in those days,” he said.

1787 – Virginia executes a 12 year-old enslaved boy for murder. Virginia also executed a 13 year-old enslaved boy for arson.

The state-sponsored killings continued through the Civil War and Jim Crow era.

“The Jim Crow era was an interesting era for Virginia and the death penalty, in that the link to lynching becomes very apparent,” Brumfield said.

During that period, there were about 100 lynchings in Virginia. Though it sounds like a lot, the number is relatively low compared to states like Texas, Georgia, and Arkansas, which saw 400 to 500 each. Brumfield says this is in part because the lynchings went by another name in Virginia: state executions for capital offenses.

“One of the reasons was Virginia got so good at catching, convicting, and executing young Black men for crimes against whites, usually against white women,” he said. “They could do it so fast that it was legal lynching.”

1908 – Virginia begins use of the electric chair for executions. Of the first 100 people executed in it from 1908 to 1920, 87 were Black – the electric chair became a “tangible symbol of white supremacy.” 

In these trials, Black men were accused of crimes ranging from rape to scaring a white schoolgirl (attempted criminal assault, officially). Most of the time, these men had no legal counsel. Often, they were mentally disabled, or their conviction relied on the testimony of a child, if there were eyewitnesses at all. 

“The trials would last less than an hour,” Brumfield said. “The jury would be out five or six minutes and would come back with a verdict of death. Thirty days later, that Black man is put to death.” 

Of the 89 women who were executed in all of Virginia’s history, 11 were white, and the rest were Black. Of those 11 white women, nine were executed prior to 1800.

“White women were like unicorns on death row.”

1962 – Electric chair “loses elegance”; Virginia places de facto moratorium on executions.

1972 – US Supreme Court rules that death penalty is unconstitutional.

1976 – US Supreme Court reverses itself, allowing for states to resume executions with mandates implemented on how they must apply capital punishment.

1982 – Virginia resumes executions with Frank Coppola, a white man.

1982-2017 – Virginia executes 113 people, second only to Texas during the same time frame. 

“It’s a horrible history,” Brumfield said. “Any reasonable person would look at Virginia’s execution history and just be outraged by it.” 

So why, after 413 years of capital punishment, are talks about its abolition possible now? Brumfield says a few factors converged at just the right time.

“Unfortunately, it took the murders of George Floyd and Breonna Taylor to shine a spotlight on criminal justice reform and Black Lives Matter,” he said. The BLM movement played a huge role in highlighting the racial disparities in the criminal justice system, of which capital punishment is a key part.

Weirdly, Brumfield says, Northam’s blackface scandal also played a significant role.

“That made governor Northam dedicated to removing racial disparities from our laws and statutes in Virginia,” he said. “When he came out that day out of nowhere, and said ‘I’m supporting abolishing the death penalty in Virginia this General Assembly session,’ it caught us all off guard. But what a happy way to be caught off guard, to have the governor come out and say that and be actively involved in pushing this legislation through the General Assembly.”

Lastly, the Trump administration’s execution at the federal level of 13 people in the last six months of his presidency was eye-opening to people, Brumfield said.

“Many people were horrified by that assembly line of executions going on.”

Brumfield said that the ultimate decision to abolish the death penalty by the Virginia legislature would not have been possible without the advocacy of several groups besides VADP, including the Virginia Interfaith Center and the ACLU of Virginia. 

When Brumfield joined VADP four years ago, his first task was to talk to Republican and Libertarian groups around the state about the death penalty, “about the process and how screwed up and bloated and corrupted it was.” That’s over now, though VADP will continue to exist for at least a year to defend the decision if need be.

“I kind of worked myself right out of a job,” Brumfield said.

Top Photo: Florida Department of Corrections/Doug Smith. Public Domain, via Wikimedia

Lawmakers Amend Virginia Human Rights Act, Kill Workplace Harassment Bills

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Where civil rights are concerned, this year’s session of Virginia’s General Assembly has been a mixed bag: protections for people with disabilities and domestic workers, but no protection against sexual harassment in the workplace.

The Virginia General Assembly passed several bills this session expanding employment protections for people with disabilities and domestic workers, but killed a pair of workplace harassment bills.

Five bills were introduced during the 2021 session to amend the Virginia Human Rights Act. Three passed the General Assembly. The Virginia Human Rights Act prohibits employment discrimination on the basis of race, religion, age, gender, and sexual orientation, among other groups. Virginia last year became the first Southern state to pass sweeping anti-discrimination protections for the LGBTQ community through the Virginia Values Act.

House Bill 1848 extends employment discrimination protection to people with disabilities. The legislation unanimously passed both chambers and Gov. Ralph Northam recently signed the bill into law.

“I am very happy that the bill has widespread support,” stated chief patron Del. Mark D. Sickles, D-Fairfax, in a press release. “I can’t thank our advocates enough, and am grateful for the leadership in Attorney General Mark Herring’s office and for the guidance of the disAbility Law Center.”

Del. Mark Sickles. Photo via CNS.

Workers with disabilities

Employers with five or more employees must make reasonable accommodations to workers with disabilities unless the employer can demonstrate such accommodations would place an “undue hardship” on the employer. Current federal law prohibits discrimination under the basis of disability for employers with 15 or more employees.

Del. Kathy Tran, D-Springfield, said during a House subcommittee hearing that in 2019 the unemployment rate for people with disabilities was twice as high as those without disabilities.

“People who have disabilities, who are able to and want to work, I think we should try to help them be part of the workforce,” Tran said.

A person who claims they were denied reasonable accommodation must file a complaint with the Office of Civil Rights. They would need to exhaust all administrative processes before pursuing a lawsuit.

Colleen Miller, executive director of the disAbility Law Center of Virginia, an advocacy organization, said the bill’s passage is “an important development for Virginians with disabilities who are in the workforce and wish to be fully employed.”

Domestic workers’ rights

A trio of bills centered on domestic workers’ rights, dubbed the Virginia Domestic Workers’ Bill of Rights, were introduced in both chambers this year. Last year, Virginia lawmakers passed a bill guaranteeing minimum wage to domestic workers. 

The bills’ patrons highlighted the impact of excluding domestic workers from employment laws, which they said are bound to the legacy of slavery and Jim Crow-era laws. Domestic workers include occupations such as “cooks, waiters, butlers, maids, valets and chauffeurs,” according to the bills. 

A majority of domestic workers are women of color and are three times as likely to live in poverty than other workers, according to the Economic Policy Institute, an independent economic research organization. 

Introduced by Sen. Jennifer L. McClellan, D-Richmond, Senate Bill 1310 extends employment nondiscrimination to employers with one or more domestic workers. It also expands employment protections to domestic workers, including laws regarding the payment of wages. 

“This is a huge step forward to provide stronger workers rights and a safer workplace for 60,000 Virginia domestic workers,” McClellan stated in a press release. “As the daughter, granddaughter, and great-granddaughter of domestic workers, I know how essential domestic workers are to the economy and how poorly mistreated they’ve been for generations.” 

Sen. Jennifer McClellan. Photo via CNS.

McClellan’s bill passed the General Assembly and now heads to the governor’s desk. The House companion bill, HB 1864, from Del. Cia Price, D-Newport News, also passed the General Assembly and awaits the governor’s signature.

Lawmakers also passed HB 2032, patroned by Del. Wendy W. Gooditis, D-Clarke. The measure does not amend the state’s Human Rights Act, but it ensures domestic workers are not excluded from employee protection laws. Workers will be able to file complaints regarding workplace safety. Virginia is the 10th state to pass such legislation. Portions of the bill that would include domestic workers under the Virginia Workers’ Compensation Act were removed.

Failed sexual harassment bills

The two bills amending the Human Rights Act that lawmakers could not advance would have strengthened current workplace sexual harassment laws.

Del. Vivian E. Watts, D-Fairfax, introduced HB 2155 to expand and clarify the definition of workplace harassment and sexual harassment. The bill passed the House but died in the Senate Judiciary Committee by a vote of 6-7. It was the delegate’s second attempt to pass such protections.

The Senate companion bill, SB 1360, reported out of the Senate Judiciary committee, but was sent back and never picked back up. Patroned by McClellan, the legislation died over concerns on the bill’s absence of employers’ liabilities, especially for small businesses. 

Watts said her bill aimed to provide clearer definition of workplace and sexual harassment. The language in the bill comes from federal court harassment case decisions over a span of two decades, Watts said.

Watts’ measure clarifies that employers would be liable for the supervisors’ actions. She said committee members who voted against the bill failed to understand that the guidance of employers’ liability is not currently spelled out in Virginia’s law. Employers may be alleviated from any liability if they can prove they “exercised reasonable care” to prevent and correct harassment, or if employees “unreasonably” fail to take actions on “preventable or corrective opportunities” to avoid further harassment, according to the bill.

Both bills defined workplace harassment as an unwelcome conduct based on race, religion, natural origin, sex, sexual orientation, gender identity, and more. Sexual harassment includes a sexual advance, a request for sexual favors, or any conduct of a sexual nature in the workplace.

Watts said her bill will remove a glass ceiling and “power differential” that contributes to workplace and sexual harassment.

“If you don’t go along (with the workplace harassment), then you will be denied professional opportunities, work opportunities moving forward,” Watts said. “It is a power struggle, and that power struggle makes it a point of leverage.”

Prior to her bill’s death, Watts said there also was confusion over the Senate bill’s language, referring to the committee’s dispute on McClellan’s bill.

“There wasn’t a real focus as there needed to be,” Watts said.

Del. Vivian Watts. Photo by Lee District Democratic Committee, CC BY 2.0, via Wikimedia

McClellan’s bill was met with debate from other lawmakers in the Senate Judiciary committee, such as Sen. Chap Petersen, D-Fairfax, over the bill’s language. McClellan asked Petersen if he wanted to add an amendment. He said he didn’t. 

“I just want this bill to go away,” Petersen said. 

Petersen questioned if his wife asking men “to move the furniture for her” constituted sexual harassment. Multiple lawmakers said the bill’s language was too broad. 

McClellan, a gubernatorial candidate, is committed to advancing anti-workplace harassment laws, either as a legislator or governor, according to her spokesperson. 

Watts said she will reintroduce her bill next year. She said she will make sure there is an understanding that the bill contains a “sound, legal approach” to employers’ liability. 

“I believe that the majority of the members do believe that this is something that needs to be spelled out to protect employees, and particularly minorities and women,” Watts said.

Written by David Tran, Capital News Service. Top Photo: The Virginia State Capitol building. Photo by George Copeland Jr.

Virginia Restaurants Grapple with Plastic Foam Container Ban

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Thanks to a bill passed by the General Assembly and headed to the governor’s desk, by 2025, polystyrene foam containers for takeout food will no longer be allowed in Virginia. What is a positive change for the environment may prove challenging to local businesses.

From vermicelli bowls to crispy chicken, Pho Luca’s, a Vietnamese-owned Richmond restaurant, uses plastic foam containers to package takeout meals. That may soon change after the General Assembly recently passed a bill banning such packaging.

After negotiations on a Senate amendment, the House agreed in a 57-39 vote last week on an amendment to House Bill 1902, which bans nonprofits, local governments, and schools from using polystyrene takeout containers. The Senate passed the amended bill in a 24-15 vote.

“We’re just leveling the playing field,” said Del. Betsy B. Carr, D-Richmond, about the amendment. “So not only restaurants, but nonprofits and schools will be subject to this ban in 2025.”

Food chains with 20 or more locations cannot package and dispense food in polystyrene containers as of July 2023. Remaining food vendors have until July 2025. Food vendors in violation of the ban can receive up to $50 in civil penalty for each day of violation. 

Carr said she is glad Virginia is taking the lead to curb plastic pollution, and that the measure will “make our environment cleaner and safer for all of our citizens [by] not having [polystyrene] in the ditches and in the water and in the food that we consume.”

This is the second year the bill was sent to a conference committee. Last year’s negotiation resulted in a reenactment clause stipulating that the bill couldn’t be enacted until it was approved again this year by the General Assembly.

The COVID-19 pandemic loomed over this year’s bill dispute as businesses shift to single-use packaging, such as polystyrene, to limit contamination.

Side by side comparison of an eco-friendly takeout container (left) and an expanded polystyrene foam container (right). Photo by David Tran.

Lawmakers skeptical of the polystyrene ban spoke out on the Senate floor, arguing the ban will hurt small businesses who rely on polystyrene foam containers, which are known for their cheaper cost.

“The places that give me these [polystyrene] containers are the places that are struggling the most right now,” said Sen. Jen A. Kiggans, R-Virginia Beach.

The pandemic has financially impacted the restaurant industry. In 2020, Virginia’s food services sector lost more than 20 percent of its employees from 2019, according to data from the Bureau of Labor Statistics. 

Like many small businesses, Pho Luca’s has relied on polystyrene foam takeout packaging because it is affordable and functional.

Dominic Pham, owner of Pho Luca’s, said he has been in contact with several vendors that sell polystyrene alternatives, but it has been a challenge for Pham to find suitable alternatives. 

Pho Luca’s currently uses plastic foam containers that cost about a nickel per container, Pham said. The alternatives will cost about 55 cents more. However, Pham said he is willing to make the change, recognizing that polystyrene containers are detrimental to the environment.

Pham said he distributed surveys to consumers on the possibility of raising prices to offset the cost of polystyrene alternatives. The results were overwhelmingly positive.

“Even if we have to upcharge them a dollar for the recyclable, reusable containers, people (are) happy to do that, they don’t mind,” Pham said.

Compostable takeout containers are one of many options food vendors have to put their food in. House Bill 1902 bans food vendors from using plastic foam containers. Photo by David Tran.

The use of plastic foam containers has risen during the COVID-19 pandemic. Several states and cities have reversed or delayed restrictions and bans on single-use plastics since April 2020, according to a USA Today report. 

The pandemic also has resulted in an increase in single-use plastics, such as plastic bags and personal protective equipment. A 2020 report in the Environmental Science & Technology journal estimated plastic packaging to increase 14 percent as consumers seek out prepackaged items due to sanitary concerns.

Although the COVID-19 pandemic sparked renewed interest in single-use plastics, environmental organizations and businesses have spoken against the use of plastic foam containers. Polystyrene biodegrades slowly and rarely can be recycled, posing a risk to wildlife and human health, according to Environment Virginia.

MOM’s Organic Market, a mid-Atlantic grocery chain, has used compostable containers and cups since 2005.

“I think that it’s the right thing to do for the environment, for communities, for our residents,” said Alexandra DySard, the grocery chain’s environment and partnership manager. 

DySard said purchasing compostable takeout containers instead of polystyrene foam containers has not financially hurt the chain. She said using a plastic lid that can be recycled locally is a better alternative than using polystyrene foam.

Polystyrene alternatives will become more affordable and accessible the more businesses use those products, DySard said.

“If it’s a statewide change, that’s kind of the best case scenario, because everybody makes the change at once,” Dysard said. “And it’s driving demand for the product up, and costs down.” 

The bill now heads to the governor’s desk. If signed, Virginia will join states such as Maryland and Maine that have already banned polystyrene foam containers. 

Written by David Tran, Capital News Service. Top Photo: Food vendors are banned from using plastic foam containers by 2025 under House Bill 1902. Photo by David Tran.

Lawmakers Ban Gay Panic Defense In Virginia

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A bill that will outlaw the notorious “gay panic” and “trans panic” defenses is headed to Governor Northam’s desk for his signature.

Virginia lawmakers passed a bill that will ban the use of a person’s perceived or actual sexual orientation or gender identity as a defense in court for the assault or murder of an LGBTQ person. 

“It’s done: We’re banning the gay/trans panic defense in Virginia,” Del. Danica Roem, D-Manassas, said in a Twitter post. 

Roem introduced House Bill 2132, which passed the Senate 23-15 on Thursday with an amendment. The House approved the amendment in a 58-39 vote. The bill now heads to Gov. Ralph Northam’s desk for a signature.

The Senate amendment adds oral solicitation, or hitting on someone, as an unacceptable justification for the gay or transgender panic defense. 

The panic defense has historically been used in cases where a member of the LGBTQ community was attacked because of their actual or perceived sexual orientation or gender identity. Defendants use the panic defense to justify “heat of passion” murders or assaults. 

“This [bill] means someone’s mere existence as an LGBTQ person does not excuse someone else and does not constitute a reasonable provocation to commit such a heat of passion attack,” Roem said.

The statute does not dismiss traditional self-defense lawsuits. This means LGBTQ people can still be prosecuted for attacking someone.

There have been at least eight instances in Virginia where the panic defense was used, with the last case in 2011, according to Carsten Andresen, a researcher and criminal justice professor from Austin, Texas. He said he has tracked 200 homicide cases nationally where the panic defense was attempted. Andresen reached out to Roem in support of the bill. 

His research included five murders and three assaults in Virginia between 1973 and 2011 that Andresen said used the panic defense to justify or excuse a defendant’s violent actions. Mark Hayes murdered Tracie Gainer, a transgender woman, in 2002. Hayes claimed he “lost it” and murdered Gainer after engaging in sexual intercourse. In 2011, Deandre Moore, age 18, pleaded guilty to killing 20-year-old Jacques Cowell by stabbing him multiple times. Cowell was openly gay and there were witness accounts that the two had a physical relationship. Moore received a 40-year prison sentence, with 15 years suspended.

“In these cases, criminal defense attorneys used gay and trans panic defense to put the victim (rather than the offender) on trial,” Andresen wrote in support of the bill. He said use of the panic defense “suggests that it is permissible to commit violence” against LGBTQ people.

Sen. Joseph Morrissey, D-Richmond, spoke in opposition of the bill, saying lawmakers should not pass laws that prohibit defendants from making a defense, and that lawmakers would be going “down a very slippery slope.” Morrissey said any defendant who would offer the panic defense “would of course be rejected.”

Sen. Jennifer McClellan, D-Richmond, said this is not the first time Virginia has expressly prohibited a defense. Legislators repealed in 2008 the code section that provided defense from carnal knowledge when a defendant marries a child 14 years or older.

“When we have found an affirmative defense to be abhorrent to public policy, we have gotten rid of it,” McClellan said. 

McClellan said she wished she could agree with Morrissey that no judge would accept the panic defense, but referred back to the Virginia cases where it was used successfully.

“We know the bill is constitutional, we know also, the bill has existing precedence, which is why it has earned overwhelming bipartisan support in state houses across the country,” Roem said.

Del. Danica Roem. Photo via CNS

The American Bar Association in 2013 recommended that local, state, and federal legislatures curtail the availabilty and effectiveness of the gay and transgender panic defense. Roem said that similar bills have been implemented in other state legislatures. Virginia will become the 12th state to ban the panic defense, according to the policy organization Movement Advancement Project. The defense is also banned in the District of Columbia.

There are currently 39 states that allow the panic defense to be used in cases where hate crimes resulted in the assault or murder of an LGBTQ individual. This typically results in a murder charge being lessened to a charge of manslaughter or acquittal.

Roem said she worked with Wes Bizzell, president of the National LGBT Bar Association, to prepare the bill. She also thanked Judy Shepard, the mother of Matthew Shepard, for speaking in support of the bill in committee.

Matthew Shepard, a gay man, was murdered in 1998 in Laramie, Wyoming. The judge barred Aaron McKinney’s defense lawyer from using the gay panic defense in the murder trial. McKinney said Shepard’s advances triggered memories of sexual abuse he suffered as a child. Police said the crime was motivated by robbery, but Shepard’s sexual orientation likely made him the target. There were four people involved in the brutal crime. Two were found guilty of murder and two were charged with being an accessory after the fact to first-degree murder.

Roem was in high school when Matthew Shepard was murdered. She said the case had a profound effect on her and prevented her from coming out due to a fear of being ostracized and attacked. 

“It was requested to me by one of my Manassas Park student constituents who’s out, hoping not to have to live in the same fear in 2021 that I did in 1998,” Roem said of the bill.

Roem said there are people who don’t believe hate crimes such as the one against Shepard happen today in Virginia. She affirmed that they do happen, and she believes it is time to do something about it.

“We have to look at this from the perspective of ‘what do we do to make an affirmative statement that LGBTQ lives matter, and that you can’t just kill us for existing,” Roem said.

Written by Cierra Parks, Capital News Service. Top Photo: A rainbow flag was raised on Sept. 23, 2019, along with a trans flag and the Philly Pride Flag for Richmond Pride. (Photos from City of Richmond Flickr account)