WINCHESTER — The Frederick County Board of Supervisors voted 6-1 on Wednesday to rescind a recent change to the county’s anti-discrimination and anti-harassment policy that protected lesbian, gay, bisexual and transgender (LGBT) county staff from discrimination.
Republican Supervisors Charles DeHaven Jr., Gary Lofton, Blaine Dunn, Bob Wells, Judith McCann-Slaughter and J. Douglas McCarthy voted to rescind the policy at Wednesday night’s board meeting. Independent Supervisor Shannon Trout was the lone vote to keep the policy in place.
The vote removes specific protections for LGBT people employed by the county government, which has 726 full-time and 250 part-time employees. It also rescinds other new protections put in place, including for pregnancy, child birth and related conditions, color and military status. The original policy prohibited discrimination based on race, gender, religion, national origin, age, disability, marital status and protected veteran status.
The revised policy was rescinded, with little discussion, after being in place for a little more than a month on the basis that it violated state law, according to Dunn, chairman of the board's Human Resources Committee. He said on Thursday he was unaware of any other aspects of the revised policy that violated state law.
At the board’s July 10 meeting, the supervisors updated the county’s anti-discrimination policy to include sexual orientation, genetic information and sex stereotyping. Public Information Officer Karen Vacchio subsequently told The Star the language referring to sex stereotyping and genetic information provided protection for transgender people.
Dunn, who made the motion to approve the revised policy at the July meeting, said he was unaware sexual orientation was included in the policy when he voted to approve it. At Wednesday night’s meeting, he made a motion to rescind the policy, claiming it was inconsistent with Virginia law and a violation of the Dillon Rule. Adopted by the Virginia Supreme Court in 1896, the Dillon Rule limits a local government’s authority so that it can only pass ordinances or exercise power in areas where the General Assembly has granted authority.
Virginia has no law to protect people from discrimination on the basis of sexual orientation or gender identity in the private or public workplace.
Dunn said on Thursday that he was told by Republican Del. Dave LaRock, of Hamilton, who represents the 33rd District, that the county’s policy protecting LGBT employees was inconsistent with the Dillon Rule.
Dunn and Wells declined to answer whether they think the state should pass legislation extending workplace discrimination protections to LGBT people, with Wells saying "that's a deep, dark question." DeHaven said he had no opinion on whether the terms sexual orientation and gender identity should be added to state discrimination law.
Roderick Williams, Frederick County’s attorney, said the board’s decision to rescind the revised policy went into effect immediately. He declined on Thursday to offer his legal opinion on whether the policy violated state law. “I don’t know if it’s appropriate to give a legal opinion in this context,” he said.
Revising the county’s anti-discrimination and anti-harassment policy will be revisited at a future Human Resources Committee meeting.
Trout said she did not know why the LGBT protections were rescinded but said not discriminating “seems pretty straightforward and common sense.”
“I read the policy when we approved it and thought it was a great policy,” Trout said. “So I was actually taken by surprise that we were voting to rescind it. I was completely unaware that this was going to be coming before the board.”
Clarke County and the City of Winchester governments do not specifically include sexual orientation or gender identify in their discrimination policies.
LaRock said in a phone interview on Thursday that the state should not provide special rights or protections for “chosen sexual habits.”
He previously said transgender people have a mental disorder and that it would be “very disturbing” if they were able to teach a kindergarten class. In a 2017 Loudoun Tribune opinion piece he compared gay people and “gender impersonators” to smokers, saying, “Like smoking, homosexuality has many serious health-related consequences.”
He noted that Section § 15.2-965 of the state code says any locality may enact an ordinance “not inconsistent with nor more stringent than any applicable state law, prohibiting discrimination in housing, employment, public accommodations, credit, and education on the basis of race, color, religion, sex, pregnancy, childbirth or related medical conditions, national origin, age, marital status, or disability.”
But Del. Mark Levine, D-Alexandria, said there is no prohibition for localities to set a policy refusing to discriminate, noting that Alexandria and Arlington provide protections on the basis of sexual orientation. He also pointed out that the state government bans discrimination against state employees based on their sexual orientation or gender identity as a result of executive orders from Democratic governors in recent years.
Levine added that the Frederick County supervisors were not passing an ordinance that would forbid county businesses from discriminating against LGBT people. It was just a protection for their own employees.
Each year, Levine has introduced bills that would provide protections for LGBT people against discrimination from landlords and public employers. He said the bills are always left to die in Republican-controlled committees.
“This will never happen unless the House is controlled by Democrats,” Levine said. “But it will happen when we take over. This is a pure party-line issue.”
Del. Wendy Gooditis, D-Clarke County, said she would vote in favor of bills to provide statewide protection to the LGBT community in housing and employment.
“Workplace protections for members of the LGBT community are integral for freedom, equality, business investment, and in my opinion, human rights,” Gooditis said. “I would vote for these freedoms at the state level and hope that these same freedoms spread at the county level as well.”
Sen. Jill Vogel, R-Upperville, has voted on bills in the Senate that would provide housing and employment protections to LGBT people.
“I don’t support discrimination,” Vogel said. “You shouldn’t discriminate. Period.”
LaRock disputes the notion that discrimination should always be illegal and is always a bad thing, claiming that employers discriminate based on intelligence or skill sets when they hire employees. He also said overweight people are often discriminated against by people hiring fashion models.
“We do discriminate,” LaRock said. “We need to be able to discriminate based on if people are smarter or better suited for certain jobs. That’s just the reality.”
Georgia Andrews, a local attorney and founder of Winchester Pride, an LGBT celebration, said the Dillon Rule is frequently used by opponents of LGBT rights to stop localities from adding protections.
She said Frederick County’s decision to rescind its policy demonstrates “why we need to have an amendment to the [state] constitution and why the language in regards to discrimination needs to be broader than what we have now.”
“I hope that people realize that your localities in and of themselves cannot protect you,” Andrews said. “You have to have broader legislation, and LGBT has to be included from the very top down. But it may be that the way to get that done is to start from the bottom up, and we may need a locality that actually does challenge it to give this the exposure that it needs. It obviously isn’t going to be Frederick County.”
Rep. Jennifer Wexton, D- 10th, cosponsored and helped pass the Equality Act in the House of Representatives to provide comprehensive federal nondiscrimination protections for LGBTQ individuals because "no one should have to worry about getting married to the person they love on Sunday and being fired for it on Monday."
The Equality Act is in the hands of the Republican-controlled Senate.