AG Herring defeats challenge to historic anti-discrimination law

RICHMOND (March 31, 2021) – Attorney General Mark R. Herring has successfully defeated a challenge to the historic Virginia Values Act in the Eastern District of Virginia against an attack seeking to block the legislation. Judge Hilton granted Attorney General Herring’s motion to dismiss in Updegrove v. Herring.

“When the Commonwealth passed the historic Virginia Values Act, we became the first southern state to enact comprehensive anti-discrimination protections and with this ruling, those important protections will remain in place,” said Attorney General Herring. “Every Virginian deserves to live without fear of being discriminated against because of whom they love, what they look like, where they come from, or how they worship. Discrimination will never be tolerated in the Commonwealth and I will continue to do all I can to defend the Virginia Values Act and protect Virginia’s LGBTQ community.”

As Attorney General Herring explained in his motion to dismiss filed in November, “[t]he Virginia General Assembly…[took]…affirmative steps to guard against discrimination…aiming to foster a more inclusive Commonwealth free from the sort of unequal treatment that has long infected public life.” Attorney General Herring also highlights that, “[t]he expanded legal protections for LGBTQ people in the Virginia Values Act are also consistent with public opinion. According to a survey in 2018, 68% of Virginians ‘support policies that would protect LGBT people from discrimination.’”

Attorney General Herring also explained the importance of the Virginia Values Act in his filing saying, “‘[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth’…earlier this year the Commonwealth of Virginia acknowledged that principle by adopting the Virginia Values Act – a law that specifically prohibits discrimination based on sexual orientation for the first time in Virginia’s history. The Act also declares that all Virginians have a right to be free from discrimination in public accommodations and that no one may be turned away from a public-facing business on account of race, sex, religion, or sexual orientation.” Attorney General Herring adds that, “[t]he General Assembly significantly expanded [its] anti-discrimination protections available under Virginia law by adopting the Virginia Values Act.”

In his motion to dismiss, Attorney General Herring also noted that, even though Congress has passed federal anti-discrimination laws, states are still “at the forefront of the fight against unequal treatment based on immutable characteristics.” He adds that, with the passage of the Virginia Values Act, the General Assembly “significantly expanded the anti-discrimination protections under [the Virginia Human Rights Act]” that “‘safeguard[s] all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, age, marital status, or disability.’” Attorney General Herring then explains that “[t]he Virginia Human Rights Act (including the Virginia Values Act) is enforced by the Division of Human Rights in the Office of the Attorney General…by intestivat[ing] complaints of unlawful discrimination, mak[ing] determinations about whether there is reasonable cause to believe state or federal laws have been violated, and facilitate[ing] conciliation efforts among the parties to resolve disputes.”

Additionally, in his motion to dismiss, Attorney General Herring detailed the importance of the Virginia Values Act in protecting against discrimination based on sexual orientation saying that, “anti-LGBTQ discrimination has long been a feature of American society… Despite progress in recent decades, this discrimination persists. In 2016, a national survey showed that 1 in 4 LGBT people had experienced discrimination because of their sexual orientation or gender identity within the prior year and that 68.5% of those who had experienced discrimination reported that it had ‘at least somewhat negatively affected their psychological well-being.” Attorney General Herring adds that “Virginia’s record is no better. Although the Commonwealth has more than 300,000 LGBT residents, an analysis from January 2030 – before the Virginia Values Act was enacted – concluded that Virginia ranked 24th in the nation in terms of ‘[s]ocial acceptance of LGB people’ and that ‘historical anti-LGBT laws likely have lingering negatives effects on the social climate for LGBT people.’ A study from 2014 that examined the prevalence of discrimination in housing in Richmond showed that opposite-sex couples were treated more favorably than same-sex couples 44% of the time.”

In the filing, Attorney General Herring also argued that “anti-discrimination laws have been adopted and implemented at both the state and federal levels without running afoul of the constitutional guarantee of free speech…the Virginia Values Act prohibits specific discriminatory acts but has nothing to say about any particular message or expression. In other words…the Act regulates conduct, not speech; it does not compel plaintiff to engage in speech with which he disagrees, and its content is neutral.”

Attorney General Herring concluded his motion to dismiss by saying that, “[i]n the Human Rights Act, the General Assembly expressly declared that ‘[i]t is the policy of the Commonwealth to…[s]afeguard all individuals…from unlawful discrimination…in places of public accommodation.’…[if] the Court does not dismiss the complaint, enjoining any part of the public accommodation law while this litigation proceeds would frustrate public policy as adopted by the General Assembly and leave at least some Virginians vulnerable to discrimination.”