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Straight
Talk about Gay Rights
Nondiscrimination
in the state workforce should extend to
sexual orientation. The only criteria that should affect
employees' work status should be
professional performance.
Attitudes
toward gay people are changing fast—nationally
and in Virginia. A new nationwide Pew poll shows
that the percentage of Americans opposed to
allowing gay and lesbian couples to marry legally
dropped dramatically from 63 percent to 51 percent
in just two years (Feb. 2004 to March 2006).
In
Virginia, the most recent and relevant data (July
2005) shows that while a majority favors limiting
marriage, 59 percent favor civil unions or some
form of legal recognition for same-sex couples,
avenues that would be prohibited permanently by
the proposed constitutional amendment that will be
on the ballot this fall.
Perhaps
surprising to many, 87 percent of Virginians (and
80 percent of Republicans) say gays have the right
to be protected from anti-gay workplace
discrimination.
There
is every reason to expect that opinions and
attitudes will continue in the direction of social
acceptance for gay people and their families. I
write from the perspective of a gay man in a
long-term domestic relationship and as a (now
retired) research psychologist who worked over 30
years in federal, state, and local government
employment settings toward creating more effective
organizations.
I
must challenge the assumptions and conclusions
reflected in two columns that recently appeared in
Bacon’s Rebellion, one by Patrick
McSweeney and the other by Becky Dale. Both
columns addressed the opinion recently issued by
the Attorney General arguing that an executive
order extending to state employees protection from
discrimination based on sexual orientation is
unconstitutional under the Virginia constitution.
Patrick
McSweeney wrote in "Sound
Opinion" (March 20, 2006) that the
Governor of Virginia may not issue an executive
order that creates a legal right or imposes a duty
beyond what the Constitution and statues have
declared. While this makes some sense to me, I
don’t know whether Gov. Warner’s (and Governor
Kaine’s) executive order about which McSweeney
writes, in fact, crosses this line, or whether it
is the Attorney General who over-reached with
respect to the scope of his opinion letter.
While
quite interested in the answer, I leave questions
on separation of powers to others more
knowledgeable of the arcane issues involved. I
will say that if Virginia’s chief executive does
not have the authority necessary to effectively
and efficiently set personnel policies and
practices, the matter needs serious attention.
I
do know, however, that during this year’s
General Assembly session legislators frequently
pointed to the existence of the executive order in
rationalizing their opposition to legislation and
budget language that included nondiscrimination on
the basis of sexual orientation.
“Not
needed,” they said. Then, guess what? Attorney
General Bob McDonnell conveniently presented his
opinion letter negating the executive order the
day after the vote stripping from the budget
Warner’s language protecting state employees
from discrimination based on sexual orientation.
The smell of this could make the nose twitch a
bit.
McSweeney
criticizes the executive order as “granting
protected legal status for homosexuals.”
This
is simply not the case. What the executive order
does (and the defeated legislation proposed to do)
is to prohibit discrimination in employment
practices on the basis of sexual orientation as a
general matter, not for certain categories of
sexual orientation.
In
the same way that discrimination currently is
prohibited on the basis of religion, everyone is
covered, regardless of how they may identify
personally. Note that we don’t hear discussions
about special rights, status, or protections for
Methodists or Evangelicals when religious
discrimination is the topic.
In
addition, Becky Dale’s expressed concern (“None
of Your Business," April 2, 2006) about
potential government snooping and data gathering
regarding the sexual orientation of applicants and
employees is misplaced. This is a non-issue.
Usually
nondiscrimination laws and policies specifically
proscribe such requests or collection of such
data. Where they don’t, it simply doesn’t
arise as a problem any more than inquiring into
religious affiliation arises when discrimination
on the basis of religion is prohibited. There is
no legitimate state interest in inquiring about
either.
Affirmative
action for gay people is simply not on anyone’s
agenda to my knowledge and is certainly not
proposed or desired by the national gay
organizations and statewide equality groups, such
as Equality Virginia. The only place I’ve seen
Dale’s suggestion before is in a few right-wing
rants aimed at stirring up fear.
Dale
additionally opines that potential negation of the
governor’s executive order covering sexual
orientation would not be so bad for gays in the
employment arena due to the 1996 U.S. Supreme
Court decision in Romer v. Evans (517 U.S. 620).
In strong and pointed language, the Court in Romer
struck down a Colorado constitutional amendment
that prohibited any government entity in Colorado
from providing any protection from discrimination
on the basis of sexual orientation.
Dale
says that the absence of a state policy to
discriminate against gays implies a default policy
not to discriminate since a policy to discriminate
could not pass the Romer test of having a
legitimate government purpose. The problem
with this logic is that discrimination can take
place in myriad employment situations and
decisions in the absence of a policy not to
discriminate. Leaving managers and supervisors
without a policy of nondiscrimination creates an
environment for overt and covert decisions that
take sexual orientation and other non-job-related
factors into consideration willy-nilly.
I
totally agree with Dale that an individual’s
sexual orientation is none of the state’s
business. I don’t, however, share the comfort
she draws from Romer for gay Virginians.
Explicit
nondiscrimination policies are still needed. Romer
addressed the question presented as to the
legitimacy of the state placing barriers to the
exercise of Constitutional rights, and responded
with a clear “no.” While using language that
comes close, the justices did not reach the
establishment of an affirmative requirement that
government justify a rational basis for all
employment decisions.
Upon
re-reading Romer, I was struck by the
straightforward acceptance of gays and lesbians as
a legitimate group or category, with no quotation
marks or equivocation. The Court’s respect for
gay people was further enhanced in 2003 by the
explicit respect for privacy presented in Lawrence
v. Texas (539 U.S. 558).
Personally,
I think that the failure of the General Assembly
to enact nondiscrimination policies covering
sexual orientation serves as a tacit encouragement
for managers and supervisors, if so inclined, to
discriminate in hiring, promotion, and other
employment decisions and benefits. Moreover,
widespread public awareness of this failure hurts
the state economically, discouraging industry and
quality workers from locating, growing, and
thriving in Virginia and suppressing efficiency in
government operations and services.
Viewed
from a larger perspective, if the law simply
required that employee selection and other
employment decisions be fair to all and have a
job-related basis, there would be little need for
a litany of categories and classes.
Government
efficiency would rise as the best qualified are
hired and promoted. Professional standards and
procedures exist for doing this.
But
that’s not where we are; and we have to deal
with where we are.
The
current ruckus is a good thing. Prejudice and fear
have thrived for years in silence and dark
closets. As more light is shed and more people get
to know more openly gay people and their loved
ones, fears subside and imagined problems recede.
In
November, Virginia voters will have the
opportunity to send legislators a message about
their failure to enact basic nondiscrimination
policies and their continued practice of elevating
social issues over important questions like
transportation. The impending referendum on the
proposed constitutional amendment to ban all legal
recognition for unmarried relationships,
permanently barring civil unions and domestic
partnerships, provides an unprecedented impetus
for discussion and enlightenment. Regardless
of the outcome in November, more Virginians will
be better informed and better prepared for
inevitable change.
--
April 3, 2006
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