By Rosalind S. Helderman
Washington Post Staff Writer
Saturday, January 1, 2011; B01
RICHMOND - Democrats in Virginia are hoping to translate momentum from the successful national repeal of the military's "don't ask, don't tell" policy into new traction for legislation that would explicitly ban discrimination against gays in the state workforce.
Similar measures have been sponsored for years, each time blocked by Republicans in the House of Delegates who argue that there is no need for a law because there's no evidence the state discriminates against gay employees.
But Democrats are looking to spark new energy around the issue when the General Assembly convenes Jan. 12. They have also been galvanized by a letter written by Attorney General Ken Cuccinelli II (R) to state universities and colleges in March advising them to remove language dealing with sexual orientation from nondiscrimination policies because the state had never passed a law on the issue.
"The attorney general's outlandish behavior has raised some eyebrows and causes some people to give a second thought to this issue," said Del. Adam P. Ebbin (D-Alexandria), who is sponsoring the legislation in the House of Delegates. "Outright bigotry is much less acceptable in our society and is becoming less acceptable as the years pass."
Federal law prohibits discrimination on grounds that include race, religion and sex but not sexual orientation. The proposed legislation would write those protections into the state code and extend them to gay employees. At least 30 other states have similar laws.
Democrats appear to be spoiling for a public fight over the issue in a year when all 140 seats of the General Assembly will be up for election in November. A video from the state party's executive director recently called on supporters to sign up as "citizen sponsors" - essentially a petition to drive public support - of the legislation.
For a party that has faced two years of crushing electoral defeats in Virginia and is struggling to find a voice, the nondiscrimination legislation offers an opportunity to rally the Democrats' base while casting Republicans as out of step with moderate voters.
"What's happened is that the middle has shifted," said Quentin Kidd, a government professor at Christopher Newport University. "Even four or eight years ago, these were good issues for Republicans. . . . But you have seen that median voters shift considerably to the left on these issues."
Some Virginia conservatives dispute that notion.
Though polls have shown that Virginians oppose discrimination in the job market against gays and lesbians, these opponents say the public doesn't necessarily support writing protections into state law.
"I'm fascinated that Democrats in Virginia seem to want to follow the game plan of Democrats in Washington that just led to their biggest electoral defeat in years," said Chris Freund, spokesman for the Family Foundation, which supports conservative social values. "Who knew that [Democratic leaders] got their marching orders from Lady Gaga?"
The proposals would specifically reference "gender identity" as well sexual orientation, language that opponents say expands the bill in ways they find troubling.
"We could be talking about situations where you have cross-dressing cops, where you have your child's kindergarten teacher who is this semester a male and next semester a female," said Del. C. Todd Gilbert (R-Shenandoah), who opposes the legislation and sits on the subcommittee that has rejected it in past years.
Even without that issue, however, Gilbert said he just doesn't believe the bill is necessary.
"I don't favor discrimination of any kind against people when their personal issues have absolutely nothing to do with doing the job," he said. "And it's because so many Virginians feel the same way that I don't see this as a problem that needs fixing. There is no discrimination they can point to that requires this bill to be passed into the law."
Proponents of the legislation believe a law would be an important statement of principle for the state - and a legal mandate to ensure that no discrimination occurs.
But there have been no legislative shifts on the issue since earlier this year, when an identical bill was defeated in a House subcommittee by a vote of 5 to 3. In his letter to colleges earlier this year, Cuccinelli noted that the General Assembly has defeated similar proposals 25 times since 1997.
That means the debate this year might be as much about staking out positions for the public as about the legislative debate.
Democrats believe the contrast between the parties will be sharpened now because of proposed legislation by Republican Del. Robert G. Marshall (Prince William) that would bar gays and lesbians from serving openly in the Virginia National Guard even as the Defense Department moves to allow their service in the rest of the military.
They have blasted Marshall for the idea - and accompanying comments in a television interview Dec. 20 in which he cited sexually transmitted diseases as a motivating factor for the proposal.
"If I needed a blood transfusion and the guy next to me had committed sodomy 14 times in the last month, I'd be worried," Marshall told WUSA-9.
On Wednesday, Democratic Del. Joseph D. Morrissey (Richmond) announced he will directly challenge Marshall's proposal with a bill that would require the Virginia National Guard to follow federal eligibility requirements.
Republicans haven't exactly raced to embrace Marshall's proposal. Gov. Robert F. McDonnell (R) said he opposed repealing "don't ask, don't tell" but believed the Virginia National Guard should follow the same rules as the rest of the military.
It was the second time in a year that McDonnell has sought to defuse controversy over gay rights. After a virtual revolt by college students and faculty over Cuccinelli's letter, McDonnell issued a nonbinding executive directive promising that discrimination in the state workforce, including on the basis of sexual orientation, would not be tolerated.
He said he supported Cuccinelli's legal advice - that only the General Assembly can establish sexual orientation as a protected category that would be recognized by courts if an employee sued over discrimination, he said.
Supporters of the legislation hope students, professors and college presidents are exercised enough to help marshal support for the bill.
"I hope my generation will fix this problem - but I have no doubt the generation behind us will fix this problem," said Sen. A. Donald McEachin (D-Richmond), who is sponsoring the Senate bill. "They've demonstrated it over this issue."
But it's unclear whether campuses remain energized over the issue.
Because of McDonnell's directive, boards of visitors at several colleges months ago reaffirmed their commitment to policies that specifically bar discriminating against gays and lesbians. None excised the language as Cuccinelli had suggested.
"The McDonnell directive answered the letter from the attorney general," Freund said. "We think it's a closed issue at this point."