He’s arguing for an affirmative obligation to allow employees to discriminate against people on the basis of sex and sexual orientation, and using the lack of words banning such discrimination in the VA Human Rights Act prevents localities from acting on their own to ban it. The only support for his position comes from past opinions of Attorneys General, which are authorized by statute to issue such opinions, but aren’t exactly binding precedent.

Looking to the actual reasoning of the position, it doesn’t stand up to any level of examination. If there is a Dormant Human Rights Act which bans the prohibition of discrimination on the basis of factors not listed in the Human Rights Act, then it must apply to all factors not listed. It also must also ban the usage of informal policies as well as formal policies. Accordingly, were Cuccinelli’s advice actually applied, it would require every public institution in the Commonwealth to be willing to discriminate (and perhaps even have policies which reflect such willingness to discriminate) on the basis of everything under the sun that is not on the approved list in the Human Rights Act.

There’s also the additional wrinkle that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination on the basis of sex. Under the Supreme Court’s decision in Price Waterhouse v. Hopkins makes clear that discrimination against a person for failing to live according to expected gender roles is necessarily discrimination on the basis of sex. Heteronormativity is ultimately a system of gender roles wherein men and women are expected and required to engage romantically with the opposite sex, and discrimination on the basis of sexual orientation is uniformly also discrimination on the basis of failing to conform with heteronormative gender stereotypes. In the case of gender identity, the link is even clearer; if you discriminate against a trans man or woman because he or she has transitioned his or her sex, you are discriminating on the basis of sex. As such, banning discrimination on the basis of gender identity or sexual orientation would be consistent with the Human Rights Act, even if the General Assembly is too stupid and bigoted to realize it.

Finally, there’s the context of this letter, which is operating to try and expressly subject residents of the Commonwealth to discrimination on the basis of sexual orientation or gender identity. While a failure to act to protect people from bigoted discrimination may not be an Equal Protection issue, it is difficult to see how this case can be distinguished from the facts of Romer v. Evans. The paucity of support for Cuccinelli’s position reveals that this letter was written to attempt to coerce universities into changing their policies, as an expression of Cuccinelli’s sheer animus towards GLBT individuals. The Commonwealth has no legitimate interest in convincing public institutions to allow discrimination on the basis of sexual orientation and gender identity, which means that a policy change consistent with this letter could not even survive rational basis review.

I’d be curious for other people’s input into this, since I’m planning to write a letter to UVA roughly consistent with what I’ve presented here. I suggest anyone else with ties to a Virginia university do the same.

Don’t get your hopes up. Aravosis writes to whip up bad feeling against the Obama Administration, not to distribute serious legal analysis to laypeople. Count on that part of Gansler’s AG opinion never showing up on AMERICAblog. In fact, I suspect if someone were to leave comments pointing out what you have, those comments would get disappeared pretty quickly.

It was great to meet you too…. finally! You are a great guy and an asset to our community. I’m looking forward to the next time we get to hang out.