Laws

United States of America

VIRGINIA

Limited information only available for these topics

Access to Children
Adoption of Children
Age of Consent
Anti-Vilification
Artifical Insemination
Assisted Reproduction
Civil Unions
  Custody of Children
Discrimination
Fostering Children
Gender Identity
Harassment
Hate Crimes
  HIV/Aids
Homosexuality
Inheritance
In Vitro Fertilisation (IVF)
Marriage
Parenting
  Partners
Property
Sodomy
Taxation
Transgender, Transsexual
Violence
Wrongful Death

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Age of Consent Legislation/Cases/References
See also: [HOMOSEXUALITY]
1.

State

Consensual sex between same sex persons aged eighteen (18) years and over in private may be defensible in court based on Lawrence v. Texas, but not those under 18 [C1.1].

See also: Courts & Tribunals in MacDonald v. Tim Moose and Keith Holder that held Virginia's sodomy law to be unconstitutional [C2.10], R2.9].

C1.1 US Supreme Court: Lawrence v. Texas, 539 U. S. 558 (2003) 26 JUN 03
Children: Access, Custody, Visitation Legislation/Cases/References
1.

Courts & Tribunals

On 23 February 2010, Judge William Cohen found Lisa Miller of Forest, Virginia, in contempt of court and issued the arrest warrant during a brief hearing in the Vermont Rutland County family court. The arrest order applies only in Vermont [R1.9].

On 17 February 2010, a judge in Bedford County, Virginia, decided not to press charges against Lisa Miller, saying the woman couldn't be held in contempt of court because she was never notified of the pending charges – for the reason that no one knows where she, or 7-year-old Isabella, is [R1.8].

In December 2009, family court Judge William Cohen ordered the biological mother of a seven-year-old Vermont girl be handed over to her former partner, the mother being in contempt of court for denying access to the child [R1.7].

On 01 January 2010, the biological mother ordered to hand over custody of her child to her lesbian ex-partner could be charged with parental abduction for failing to comply with a court order [R1.6].

On 20 November 2009, family court Judge William Cohen issued a 21-page decision granting custody to the non-biological mother of a 7-year-old girl as the result of a child visitation lawsuit between a former lesbian couple [R1.5].

In June 2008, the Virginia supreme court ruled that the state must enforce a Vermont court order awarding child visitation rights to a mother's lesbian former partner [R1.4].


In July 1998, a divorced West End mother subsequently living in a lesbian relationship was awarded continued custody of her two young children by the Henrico County Juvenile and Domestic Relations District Court [R1.3].


In July 1997, the Court of Appeals of Virginia reversed a visitation order against Sharon Bottoms, whose son was taken away four years ago because she is a lesbian, citing the best interest of her biological child [R1.2]


In August 1996, a lesbian who lost custody of her son in a court battle with her own mother abandoned her three-year fight to get that decision overturned [R1.1].

R1.9 The Washington Post: Arrest ordered in Vermont same-sex parent custody case 23 FEB 10
R1.8 The Advocate: No Charges in Lesbian Custody Case 18 FEB 10
R1.7 PinkNews.co.uk: Birth mother ordered to hand over child to lesbian ex-partner 30 DEC 09
R1.6 PinkNews.co.uk: Woman fails to hand child to lesbian ex-partner 04 JAN 10
R1.5 The Advocate: Lesbian Granted Custody Over "Ex-Gay" Ex 25 NOV 09
R1.4 The Advocate: Court: Vermont Ruling Stands in Lesbian Custody Case 07-09 JUN 08
R1.3 Richmond Times Dispatch: Lesbian Mother Awarded Custody 21 JUL 98
R1.2 Frontiers Newsmagazine: Lesbian Mother Wins Visitation Battle 22 AUG 97
R1.1 Melbourne Star Observer: Bottoms Gives Up Fight 23 AUG 96
Civil Unions, Partners: Registered, Domestic Legislation/Cases/References
See also: [MARRIAGE]
1.

State

In January 2011, a committee in the state Senate approved a bill making it possible for state employees to add samesex partners to their health benefits plan. The measure does not mandate provision of such benefits, but removes any obstacle in existing state public employee benefits law for a jurisdiction that wants to make such benefits available [R1.5].

In April 2004, Virginia Governor Mark R. Warner signed legislation that bans the state from recognizing civil unions or providing any benefits enjoyed by married couples. The new legislation denies the privileges of marriage to gay couples in "a civil union" [R1.4].

The law, which takes effect 01 July 2004, prohibits a civil union, partnership contract or "other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage." It does not define what types of arrangements it would cover, leaving many legal experts with conflicting opinions [R1.3].


Since the 1950s the law in Virginia says provides that insurers with state licenses can extend coverage only to spouses and dependent children, thus restricting those insurance companies from writing group policies that cover domestic partners [R1.2].

In July 2003, self-insured larger companies who underwrite their own insurance plans were reportedly not so restricted [R1.2]

In July 2003, the Virginia Housing Development Authority's "family rule" requiring people applying jointly for a low-interest loan to be related by blood, marriage or adoption, and effectively banning unmarried couples, gay partners and other unrelated adults, was lifted [R1.1].

In January 2003, a bill to expand the definition (of spouses and dependent children) to include household members "in whom the primary insured has an insurable interest" and "who reside in the same household as the insured" failed in a 15–6 vote to get through the Commerce and Labor Committee in the House of Delegates [R1.2].

2.

County

In 1997, Arlington County offered domestic partner benefits however, the Court ruled the policy was unlawful (see Courts & Tribunals below).

3.

Cities & Towns

On 28 October 2013, Richmond City Council approved 5-3 an ordinance extending benefits to the spouses of employees in same-sex relationships. Charlottesville City Council approved a similar ordinance on 07 October [R3.1].

4.

Courts & Tribunals

On 28 April 2016, the State Supreme Court reversed a Fairfax County judge and the Virginia Court of Appeals ruling that Michael Luttrell was obliged to pay spousal support to his divorced wife Samantha Cucco even though she had subsequently cohabited in a same-sex partnership. The Court ruled that a gay couple can be legally considered to have ''a relationship analogous to marriage'', reversing and remanding the case to the Court of Appeals and Circuit Court [C4.7], [R4.6].

On 27 April 2011, Judge C Randall Lowe reversed his original rulling, determining that Michael Dye and Brian Justice cannot be legally married and an order granting a petition to change their last names to Dye-Justice does not convey any benefits of marriage [C4.5], [R4.4].

On 07 January 2011, Circuit Court Judge C Randall Lowe reversed his October 2010 decision and ruled that a woman could now take the last name of her lesbian partner as it would not be made for a fraudulent purpose [R4.3[.

In April 2000, a unanimous Virginia Supreme Court struck down an Arlington County law yesterday that conferred health insurance benefits on the unmarried domestic partners of local government employees [R4.2].

In March 1999, an Arlington judge ruled that the county's policy of providing health insurance benefits to its unmarried workers' domestic partners is prohibited under state law [R4.1].

R1.5 Lesbian/Gay Law Notes: Legislative & Administrative Notes PDF page 24. 655.57kb, FEB 11
R1.4 365gay.com: Amended Anti-Gay Law Becomes Law In Virginia 16 APR 04
R1.3 Associated Press: What does Virginia's new anti-gay law actually do? 22 MAY 04
R1.2 Norfolk Virginian-Pilot: Virginia Limits Insurance Coverage for Unmarried Partners 20 JUL 03
R1.1 Norfolk Virginian-Pilot: Ban Lifted on Loans to Unmarried Couples in Virginia 25 JUL 03
R3.1 The Republic: Two Virginia cities OK same-sex benefit ordinance, move symbolic due to state marriage ban 29 OCT 13
4. Courts & Tribunals
C4.7 Opinion: Michael Allen Littrell c. Samantha Mary Jo Cucco No. 160770 PDF 56.90kb 28 APR 16
R4.6 TheWashingtonPost: Virginia Supreme Court recognizes unmarried same-sex couples are legal too 02 MAY 16
C4.5 Michael Evan Dye, Name Change Case No: CL11-73 PDF 87.31kb, 27 APR 11
R4.4 NBC Washington: Gay Couple In Virginia Wins Hyphenated Last Name Case 16 MAY 11
R4.3 The Advocate: Judge Reverses on Lesbian Name Change 13 JAN 11
R4.2 Washington Post: Virginia Justices Strike Down Benefits for Partners 22 APR 00
R4.1 Washington Post: Court Finds Arlington's Benefits Policy Illegal 05 MAR 99
Discrimination Legislation/Cases/References
See also: [GENDER IDENTITY]
1.

State

On 23 January 2017, the Senate Committee on General Laws and Technology approved 12-4 Senate Bill 783, which would ban discrimination against state employees based on sexual orientation and gender identity and Senate Bill 822, which would add LGBT-specific protections to the Virginia Fair Housing Law, passed by an 11-3 vote margin. Both bills will now go before the full Senate [R1.15].

On 05 January 2017, Governor Terence McAuliffe signed into effect Executive Order 61 (2017) requiring all future state contractors with the Executive Branch to agree to a non-discrimination policy that includes discrimination based on sexual orientation or gender identity [L1.14], [R1.13].

On 30 March 2016, Governor Terry McAuliffe vetoed SB41, a ''religious liberty'' bill that would have prevented the state from penalizing businesses and individuals who cite faith-based grounds for discriminating against same-sex couples, transgender people, and people who have sex outside of marriage [R1.12].

On 25 February 2016, the Senate approved 21-19 an amended version of HB 773, a "religious freedom" bill protecting any person authorized to perform a marriage ceremony and any religious organization or organization supervised or controlled thereby, from providing services, accommodations, facilities, goods, or privileges, if the action would cause the individual or organization to violate a sincerely held religious belief. Gov. Terry McAuliffe has pledged to veto HB 773 [R1.11].

On 20 January 2014, the Virginia Senate General Laws and Technology Committee in a 7-7 vote struck down Senate Bill 248, a bill that would have banned discrimination against LGBT state employees [R1.10].

On 11 January 2014, Governor Terry McAuliffe signed an executive order that bans discrimination against LGBT state employees based on sexual orientation, gender identity and expression [R1.9].

On 31 January 2013, the House of Delegates passed 80–19 Bill HB 1617 that prohibits “discriminating against a student organization or group on the basis of the religious, political, philosophical or other content of the organization or group's speech” and to determine who will not be allowed in their membership [R1.8].

On 25 January 2013, the Senate passed 24–16 Bill SB 701 that would make it unlawful for gay and lesbian state employees to be discriminated against, but the proposal faces an uncertain future in the House of Delegates [R1.7].

On 02 February 2011, the Senate passed Sen. Donald McEachin's bill (Fairness and Justice Act) 22–18, a measure to prohibit state government from discriminating against employees because of their sexual orientation. On 01 February 2011, a House committee killed a similar proposal [R1.6].

On 10 March 2010, Governor Bob McDonnell directed state agencies not to discriminate against gay people, essentially overriding the state attorney general's advice to colleges [R1.5].

Previously:

In March 2010, Attorney General Ken Cuccinelli II was reported to have sent a letter to state colleges and universities asking officials to end policies banning discrimination based on sexual orientation, on the ground that it was up to the discretion of the General Assembly to offer protections to gay and lesbian state employees [R1.4].

On 02 March 2010, a house of delegates subcommittee killed legislation aimed at banning job discrimination against gay state employees [R1.3].

On 09 February 2010, a bill passed by the Senate for the first time that would have protected state workers from discrimination based on sexual orientation died in a Virginia house of delegates subcommittee. Republican Governor Robert McDonnell had not renewed executive orders from two previous Democratic governors that protected state workers from discrimination based on sexual orientation [R1.2].

In 2005, Virginia policy for the first time barred state agencies from discriminating against gays in hiring and promotions [R1.1]

2.

Courts & Tribunals

On 13 April 2017, the Virginia Supreme Court dismissed a lawsuit filed by Liberty Counsel on behalf of Traditional Values Coalition President Andrea Lafferty and an unnamed minor and his parents, that challenged the inclusion of sexual orientation and gender identity in the Fairfax County School District's nondiscrimination policy, ruling Lafferty and the other plaintiffs did not have legal standing to challenge the inclusion of gender identity and sexual orientation in the policy [C2.7], [R2.6].

On 06 March 2017, the US Supreme Court vacated the US Court of Appeal for the Fourth Circuit judgment in the so-called ''transgender bathroom'' case and remanding it to the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017 [C2.5], [D2.4], [R2.3].

On 19 April 2016, the US Court of Appeals for the Fourth Circuit upheld the Department of Education's interpretation of Title IX of the Education Amendments of 1972 to the law, banning sex discrimination and requiring school districts to allow transgender people to use the restroom that corresponds with their gender identity [C2.2], [R2.1].

R1.15 Virginia Senate committee approves two pro-LGBT bills 23 JAN 17
L1.14 Executive Order 61: Executive Action to Ensure Equal Oportunint and Access for all Virginiancs in State Contracting and Public Services PDF 149.23kb 05 JAN 17
R1.13 GovernorVirginia: Governor McAuliffe Signs Executive Order to Combat Discrimination in Virginia 05 JAN 17
R1.12 TheAdvocate: Virginia Governor Vetoes Antigay 'Religious Liberty' Bill 30 MAR 16
R1.11 WashingtonBlade: Virginia Senate approves religious freedom bill 28 FEB 16
R1.10 WashingtonBlade: Virginia lawmakers kill two pro-LGBT bills 20 JAN 14
R1.9 Washington Blade: Terry McAuliffe bans discrimination against LGBT state employees 11 JAN 14
R1.8 The Advocate: Advancing Virginia Bill Will Allow College Groups to Discriminate 02 FEB 13
R1.7 GayStarNews: Virginia Senate passes bill to ban anti-gay discrimination 27 JAN 13
R1.6 Gayapolis: State Senate passes bill to ban gay discrimination by state government 02 FEB 11
R1.5 365Gay.com: Virginia Governor counters state attorney general's advice on gays 11 MAR 10
R1.4 365Gay.com: Virginia AG seeks to cut gays from higher ed discrimination policies 05 MAR 10
R1.3 The Advocate: Virginia Rejects Nondiscrimination 02 MAR 10
R1.2 The Advocate: Virginia House of Delegates Kills Worker Protections 10 FEB 10
R1.1 The Advocate: Virginia's Warner Gives Gays Protection in State Hiring 20 DEC 05
2. Courts & Tribunals
C2.7 Opinion: Andrea Lafferty, et al. v. School Board of Faifax County No. 160777 PDF 50.67kb 13 APR 17
R2.6 TheWashingtonBlade: Virginia Supreme Court dismisses Fairfax school district lawsuit 14 APR 17
C2.5 Order List: 580 U.S.: Monday, March 6, 2017 PDF 221.44kb 06 MAR 17
D2.4 US Department of Justice: Dear Colleague Letter PDF 397.53kb 22 FEB 17
R2.3 NationalReview: Supreme Court Vacates Fourth Circuit Transgender Ruling 06 MAR 17
C2.2 Opinion: G.G. by his next friend and mother, Deidre Grimm v. Gloucester County School Board No. 15-2056 PDF 204.87kb 19 APR 15
R2.1 BuzzFeed: Federal Appeals Court Upholds Protections For Transgender People In Landmark Ruling 20 FEB 16

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Gender Identity, Intersex,
Transgender, Transexual

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Legislation/Cases/References
1.

Courts & Tribunals

On 03 August 2017, the US Court of Appeal for the Fourth Circuit remanded the Gavin Grimm v. Gloucester County School Board case in which a transgender boy challenged his being denied use of the boys' room at his school. The Court remanded the case to the District Court to determine whether Gavin Grimm has a continuing interest, he having since graduated from the school [C1.32], [R1.31].

On 01 June 2017, it was reported that the US Court of Appeals for the Fourth Circuit had tentatively scheduled arguments in Gavin Grimm's case against the Gloucester County School Board for its September session [R1.30].

On 06 March 2017, the US Supreme Court vacated the US Court of Appeal for the Fourth Circuit judgment in the so-called ''transgender bathroom'' case and remanding it to the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017 [C1.29], [D1.28], [R1.27].

On 28 October 2016, the US Supreme Court agreed to hear (certiorari granted) the Gloucester County School Board v. G.G. transgender rights case which could determine whether schools are required to let students use bathrooms based on gender identity [C1.26], [R1.25].

On 11 October 2016, it was reported that judge Dennis L Hupp in the Twenty-Sixth Judicial Circuit Court in Shenandoah County approved the application of M2F transgender Kendra Catherine Brill to change her name from William Joseph Brill. On 30 October 14, the judge first denied the request partly because of her probation in Botetourt County, now extended. Brill is now waiting for the change to be processed [R1.24].

On 26 August 2016, the Virginia Supreme Court refused to hear the appeal of 24-year-old M2F transgender Aileta Jane Ilana (born Christopher James Swicegood) an inmate at the medium-security Federal Correctional Institution Petersburg, stating she had failed to timely file the petition for appeal. On January 19, 2016, without hearing anything from her (she being imprisoned), Judge Nathan C. Lee denied her petition, reasoning that being transgender is not ''good cause'' for a name change. Swicegood has received treatment for her gender dysphoria and has started the transition from a male to a female presentation but has been denied any assistance in the law [R1.23].

On 03 August 2016, the US Supreme Court voted 5-3 to temporarily stay the order of the United States District Court for the Eastern District of Virginia permitting the plaintiff, G.G., to use the boys' restroom at Gloucester High School [C1.22], [R1.21].

On 13 July 2016, the Gloucester County School Board filed an emergency petition in the US Supreme Court seeking to stay a temporary injunction and a previous appeals court ruling in the G.G. v. Gloucester County School Board transgender bathroom case until it can fully argue its case [R1.20].

On 06 July 2016, Judge Robert G Doumar denied the Gloucester County School Board request to stay his 23 June order pending an appeal to the Supreme Court saying the appeals court's actions indicated that it wanted its judgment to take effect immediately. The School Board has appealed that ruling to US Court of Appeals for the Fourth Circuit [C1.19], [R1.18].

On 23 June 2016, Judge Robert G Doumar on the US District Court for the Eastern District of Virginia ordered that Gloucester County School Board permit the plaintiff, G.G., to use the boys' restroom at Gloucester High School until further order of this Court [C1.17], [R1.16].

On 31 May 2016, the US Court of Appeals for the Fourth Circuit denied a request by the Gloucester County School Board for a full court rehearing of a controversial transgender bathroom case, Circuit Judge Niemeyer dissenting [C1.15], [R1.14].

On 19 April 2016, the US Court of Appeals for the Fourth Circuit upheld the Department of Education's interpretation of Title IX of the Education Amendments of 1972 to the law, banning sex discrimination and requiring school districts to allow transgender people to use the restroom that corresponds with their gender identity [C1.13], [R1.12].

On 17 September 2015, the Memorandum Opinion of US District Judge Robert G. Doumar in the Gavin Grimm v. Gloucester County School Board case was released. In dismissing the Title IX discrimination claims in the lawsuit (so preventing 16-year-old f2M transgender student Gavin Grimm from using the boys' restrooms at the start of school on 08 September, the Judge said that federal law allows schools to separate restrooms based on sex and saying “Not only is bodily privacy a constitutional right, the need for privacy is even more pronounced in the state educational system” [C1.11], [R1.10].

On 04 September 2015, US District Court Judge Robert G Doumar ruled against Gavin Grimm, a f2m transgender male student who sought a preliminary injunction challenging a recent resolution of Gloucester County School Board seeking to resume using the boys' restrooms when school begins this fall. On 09 December 2014, the Board enacted a policy that overruled the decision of school administrators and categorically barred transgender students from using restrooms that correspond with their gender identity [C1.9], [R1.8].

On 21 May 2014, Lynchburg Circuit Court Judge F Patrick Yeatts granted the application of Julianna Tourmaline Fialkowski, 24, to change her name from Joseph David Fialkowski. The Judge had previously denied the application in January [R1.7].

On 28 August 2013, US District Court, Western District of Virginia Judge James C. Turk ruled that Ophelia De'Lonta, a 53-year-old, pre-operative transexual, is entitled to get evaluated by a gender identity specialist of her choice, at her expense [C1.6], [R1.5].

On 28 January 2013, the United States Court of Appeals for the Fourth Circuit (JJ Motz, King and Diaz), reversed the District Court dismissal of Ophelia De'Lonta v. Gene Johnson & Ors in which De'Lonta alleged the refusal to evaluate her for a sex-change operation was in violation of her constitutional rights – remanding the case for further proceedings [C1.4].

On 04 November 2011, transgender inmate Ophelia De'Lonta filed an appeal in the US Court of Appeals, Fourth Circuit [C1.3], [R1.2] of the 28 October 2011 ruling of James C. Turk in the US District Court for the Western District of Virginia dismissing her suit seeking a court-ordered sex change operation [C1.1].

R1.31 ReutersUS: Major U.S. transgender case remanded after student graduates 03 AUG 17
R1.30 TheRepublic: Court sets September arguments in transgender bathroom case 01 JUN 17
C1.29 Order List: 580 U.S.: Monday, March 6, 2017 PDF 221.44kb 06 MAR 17
D1.28 US Department of Justice: Dear Colleague Letter PDF 397.53kb 22 FEB 17
R1.27 NationalReview: Supreme Court Vacates Fourth Circuit Transgender Ruling 06 MAR 17
C1.26 Order List: 580 U.S.: Friday. October 28, 2016 PDF 38.85kb 28 OCT 16 (Accessed 29 ICT 16)
R1.25 BBCnews: Supreme Court to hear transgender school bathroom case 28 OCT 16
R1.24 WDBJ7: Transgender woman advocating for name change has final day in court 11 OCT 16
R1.23 TheHuffingtonPost: Transgender Inmate Denied Access to the Courts 02 SEP 16
C1.22 Order: Gloucester County School Board v. GG No. 16A52 PDF 41.45kb 03 AUG 16
R1.21 BBCnews: US Supreme Court blocks transgender toilet ruling 03 AUG 16
R1.20 TheNews&Advance: Gloucester School Board asks U.S. Supreme Court to overrule lower courts in transgender student bathroom case 13 JUL 16
C1.19 Order: G.G., by his next friend and mother, Deirdre Grimm v. Gloucester Country School Board No. 4:15cv54 PDF 285.24kb 06 JUL 16
R1.18 TheVirginianPilot: Court nixes school's latest bid in transgender bathroom case 06 JUL 16
C1.17 Order: G.G. v. Gloucester County School Board No. 4:15cv54 PDF 412.76kb 23 JUN 16
R1.16 PinkNews: US federal court rules that trans student can use gender-appropriate bathroom 24 JUN 16
C1.15 Order: G.G. by his next friend and mother, Deidre Grimm v. Gloucester County School Board No. 15-2056 PDF 33.82kb 31 MAY 16
R1.14 NBC12: Appeals court denies hearing in VA transgender bathroom case 01 JUN 16
C1.13 Opinion: G.G. by his next friend and mother, Deidre Grimm v. Gloucester County School Board No. 15-2056 PDF 204.87kb 19 APR 15
R1.12 BuzzFeed: Federal Appeals Court Upholds Protections For Transgender People In Landmark Ruling 20 FEB 16
C1.11 Memorandum Opinion: G.G. v. Gloucester County School Board No. 4:15cv54 PDF 1.44MB 17 SEP 15
R1.10 DailyPress: Federal judge issues opinion in Gloucester transgender lawsuit 18 SEP 15
C1.9 Order: G.G. v. Gloucester County School Board No. 4:15cv0054-RGD-TEM PDF 209.13kb, 04 SEP 15
R1.8 ACLUofVirginia: Federal Court in Virginia Rules Against Transgender Student Seeking to Use Appropriate Restroom at School 05 SEP 15
R1.7 TheNews&Advance: Judge OKs transgender Lynchburg woman's name change 21 MAY 14
C1.6 Memorandum Opinion: De'Lonta v. Clarke et al 7:11-cv-00257 PDF 313.76kb, 28 AUG 13
R1.5 Watchdog: Inmate one step closer to getting Virginia to shell out $20k for her sex-change operation 28 AUG 13
C1.4 Pacer (registration required): Ophelia De'Lonta v. Gene Johnson & Ors No. 11-7482 PDF 71.47kb, 28 JAN 13
C1.3 US Court of Appeals, Fourth Circuit: Ophelia De'Lonta v. Gene Johnson Case No. 11-7482, 04 NOV 11
R1.2 The Washington Post: Transgender Virginia inmate wants sex change operation 05 DEC 11
C1.1 US District Court for the Western District of Virginia: De'lonta v. Johnson et al pdf 602.78kb, Case No. 7:11-cv-00257, 28 OCT 11.
Homosexuality, Sodomy Legislation/Cases/References
See also: [AGE OF CONSENT]
1.

State

Consensual sex between same-sex couples is lawful.

On 23 April 2014, Governor Terry McAuliffe approved bill SB14 amending the Crimes Aganist Nature provision §18.2-361 in the Code of Virginia to read [L1.2].

"A. If any person carnally knows in any manner any brute animal or voluntarily submits to such carnal knowledge, he is guilty of a Class 6 felony."

On 06 March 2014, the House of Delegates unanimously (100-0) passed bill SB14 that revises the “Crimes Against Nature” statute (§18.2-361), formally decriminalizing oral and anal sex between consulting adults regardless of sexual orientation. The bill is awaiting the signature of Gov. Terry McAuliffe before it goes into effect [R2.11].

On 07 October 2013, the US Supreme Court denied a petition for a writ of certorari against the 4th U.S. Circuit Court of Appeals in MacDonald v. Tim Moose and Keith Holder holding that Virginia's sodomy law was unconstitutional [C2.10], [R2.9].

On 12 March 2013, the 4th U.S. Circuit Court of Appeals in MacDonald v. Tim Moose and Keith Holder held 2-1 that the long-standing “Crimes against Nature” law, which criminalized anal and oral sex in Virginia was unconstitutional [C2.7], [R2.6].

Previously:

The criminal law in Virginia prohibited consensual sex between same-sex couples [R1.1].

2.

Courts & Tribunals

On 07 October 2013, the US Supreme Court denied a petition for a writ of certorari against the 4th U.S. Circuit Court of Appeals in MacDonald v. Tim Moose and Keith Holder holding that Virginia's sodomy law was unconstitutional [C2.10], [R2.9].

On 09 August 2013, US Chief Justice John Roberts denied a request by Virginia Attorney General Ken Cuccinelli that a lower court ruling overturning the state's sodomy law be put on hold while the Supreme Court decides whether to hear Cuccinelli's appeal. See: MacDonald v. Tim Moose and Keith Holder [R2.8].

On 12 March 2013, the 4th U.S. Circuit Court of Appeals in MacDonald v. Tim Moose and Keith Holder held 2-1 that the long-standing “Crimes against Nature” law, which criminalized anal and oral sex in Virginia unconstitutional [C2.7], [R2.6].

On 14 January 2005, the Supreme Court of Virginia in Martin v. Ziherl, held that the Virginia criminal law against (opposite sex) fornication was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in Lawrence v. Texas [C2.5].

In June 2003 US Supreme Court ruling in Lawrence & Garner -v- Texas that a similar the law in Texas was an unconstitutional violation of privacy is thought to nullify or invalidate the Virginia law [C2.4], [R2.4].

However, Circuit Judge Edward W. Hanson Jr. said the June Supreme Court ruling in Lawrence v. Texas applied to sodomy that occurs in private, not sodomy that takes place in public and that Viriginan the law does not distinguish between private and public sodomy, finding that the case against a man accused of soliciting sodomy in a shopping mall bathroom could proceed. If convicted, the alleged offender could face up to five years imprisonment [R2.3].


In December 1999, the Virginia Court of Appeals agreed to review the constitutionality of a state law that makes oral sex between consenting adults a felony and in November 2000 ruled that the state’s sodomy law was not unconstitutionally applied in the case of 10 gay men arrested in 1998 for cruising in a Roanoke park [R2.2].

In March 1999, Roanoke Circuit Judge Richard Pattisall was asked to rule on whether a law that makes consensual oral sex a felony is an unconstitutional violation of privacy and should not be used to prosecute 17 men charged with cruising for sex in a Roanoke park [R2.1].

L1.2 LegislativeInformationSystem: Chapter 794 (Accessed 28 JUL 14)
R1.1 Washington Blade: Virginia officials deny discrimination in adoption case 04 JUN 02
R2.11 TheAdvocate: Virginia's House of Delegates Repeals Sodomy Ban 07 MAR 14
4. Courts & Tribunals
C2.10 US Supreme Court: Tim Moose v. William Scott MacDonald No 12-1490 07 OCT 13
R2.9 USA Today: Court won't hear Virginia appeal over sodomy law 07 OCT 13
R2.8 Washington Blade: Supreme Court rejects Va. request for stay on sodomy law 09 AUG 13
C2.7 Opinion: MacDonald v. Tim Moose and Keith Holder 11-7427 PDF 139.36kb, 12 MAR 13
R2.6 LGBTQ Nation: 4th Circuit strikes down Virginia's sodomy laws 12 MAR 13
C2.5 Opinion: Martin v. Ziherl 607 S.E.2d 367 PDF 21.89kb, 27 JAN 05
C2.4 US Supreme Court: Lawrence v. Texas, 539 U. S. 558 (2003) 26 JUN 03
R2.4 Associated Press: Supreme Court Strikes Down Gay Sex Ban 26 JUN 03
R2.3 Norfolk Virginian-Pilot: Sodomy case can proceed, judge says 30 OCT 03
R2.2 The Advocate: Virginia Upholds Sodomy Law 23-27 NOV 00
Richmond Times-Dispatch: Appeal of Virginia Sodomy Law Argued 12 DEC 00
Roanoke Times: Law Says Sodomy is Always Illegal 29 JUN 00
Roanoke Times: Appeals Court to Review Sodomy Law 15 DEC 99
R2.1 Roanoke Times: Ruling on Constitutionality of Anti-Sodomy Law Soon 02 MAR 99
Marriage Legislation/Cases/References
1.

State

On 07 February 2017, the Senate passed 21-19 Senate Bill 1324 aimed at protecting religious institutions that oppose gay marriage. The House approved a similar bill last week. Governor Terry McAuliffe, a Democrat, has pledged to veto the legislation [R1.8].

On 23 January 2017, the Senate Committee on General Laws and Technology approved 4-2 House Bill 2025, which would prohibit the state from punishing anyone who refuses to officiate a same-sex marriage if it violates their religious beliefs [R1.7].

On 30 March 2016, Governor Terry McAuliffe vetoed SB41, a ''religious liberty'' bill that would have prevented the state from penalizing businesses and individuals who cite faith-based grounds for discriminating against same-sex couples, transgender people, and people who have sex outside of marriage [R1.6].

On 27 January 2015, the Senate Privileges and Elections Committee rejected 8-7 a proposal to begin the process of repealing the amendment approved by Virginia voters in 2006 defining marriage as a union between a man and a woman despite Federal Court decisions finding the ban unconstitutional [R1.5].

On 07 October 2014, Governor Terry McAuliffe issued an executive order directing state agencies to comply with the US Supreme Court order that it was not going to consider appeals from lawmakers in several states who wished to uphold same-sex marriage bans, paving the way for same-sex marriages to commence [R1.4].

On 20 January 2014, the Virginia House of Delegates Civil Law Subcommittee in a 4-5 vote struck down House Bill 939, a proposal that would have repealed the state's statutory same-sex marriage ban [R1.3].

In 1997, the Virginia legislature passed the Affirmation of Marriage Act prohibiting marriages between same-sex couples [R1.2].


On 30 June 2008, Attorney Howard Gwynn said a couple who obtained a marriage license and exchanged vows in Virginia before officials realized both were biologically men will not face charges [R1.1].

See: Courts & Tribunals below.

2.

Courts & Tribunals

On 28 April 2016, the State Supreme Court reversed a Fairfax County judge and the Virginia Court of Appeals ruling that Michael Luttrell was obliged to pay spousal support to his divorced wife Samantha Cucco even though she had subsequently cohabited in a same-sex partnership. The Court ruled that a gay couple can be legally considered to have ''a relationship analogous to marriage'', reversing and remanding the case to the Court of Appeals and Circuit Court [C2.25], [R2.24].

On 06 October 2014, the US Court of Appeals for the Fourth Circuit issued its mandate in Bostic v McQuigg allowing same-sex marriages to proceed this day [C2.23], [R2.22].

On 06 October 2014, the U.S. Supreme Court denied review of five cases from Indiana, Oklahoma, Utah, Virginia and Wisconsin seeking the freedom to marry, leaving in force the five favorable marriage rulings reached in three federal appellate courts, meaning that soon, as many as 60% of the American people will be living in freedom-to-marry states [C2.21], [R2.20].

On 29 September 2014, the nine justices of the US Supreme Court likely met to discuss whether they should take up any or all of the seven petitions before the Court from Indiana, Oklahoma, Utah, Virginia and Wisconsin on the issue of marriage equality. (The only public word from the Court after the conference will be its order list. The list could be released earlier but likely will issue on 06 October) [R2.19].

On 20 August 2014, the US Supreme Court granted an application to stay the federal appeals court's ruling in Bostic v. Schaeffer against Virginia's ban on same-sex marriage, blocking same-sex marriages from taking place [C2.18], [R2.17].

On 14 August 2014, attorneys representing a county clerk in northern Virginia asked the US Supreme Court to stay the Bostic v. Schaeffer decision by the 4th U.S. Circuit Court of Appeals in Richmond. US Supreme Court Chief Justice John Roberts set a deadline of Monday at 5 p.m. EDT for attorneys representing two same-sex couples to respond to a request [R2.16].

On 13 August 2014, the US Court of Appeals for the Fourth Circuit denied a request to delay implementation of its ruling striking down Virginia laws denying marriage to same-sex couples. The court's action means that, unless the Supreme Court intervenes, couples may begin marrying and having their out-of-state marriages recognized in Virginia on August 21 [C2.15], [R2.14].

On 28 July 2014, the US Court of Appeals for the Fourth Circuit ruled 2-1 in Bostic v. Schaeffer that Virginia's same-sex marriage ban is unconstitutional [C2.13], [R2.12]. The ruling is subject to an application for an en banc review within 14 days or appeal to the US Supreme Court [R2.11].

On 20 March 2014, the 4th U.S. Circuit Court of Appeals scheduled 13 May for argument in the Bostic v. Schaefer case [R2.10].

On 10 March 2014, the 4th U.S. Circuit Court of Appeals tentatively scheduled the week of 12 May for oral arguments on Virginia's constitutional ban on same-sex marriages in the Bostic v. Schaefer case (formerly Bostic v. Rainey). The court also granted the plaintiffs in a parallel case, Harris v. Rainey, permission to intervene on the side of plaintiffs in Bostic v. Schaefer [R2.9].

On 13 February 2014, District Judge Arenda Wright Allen ruled that Virginia's ban on same-sex marriage is unconstitutional, issuing a stay of her order while it is appealed [C2.8], [R2.7].

On 31 January 2014, Judge Michael Urbanski in the US District Court for the Western District of Virginia certified the Joanne Harris et. al. v. Janet M Rainey et. al. case as a class action, extending the challenge to the state's ban on marriage for same-sex couples to all same-sex couples in the state who cannot legally marry or whose legal marriages performed elsewhere are not recognized by the Commonwealth [C2.6], [R2.5].

On 23 December 2013, the federal court denied a motion from the Staunton Circuit Court Clerk seeking dismissal of a lawsuit challenging Virginia's ban on marriage for gay and lesbian couples [R2.4].

On 03 September 2013, an amended complaint seeking declaratory, injunctive and other relief was filed in the US District Court for the Eastern District of Virginia in the case of Timothy B Bostic et. al. v. Janet M Rainey & Another No. 2:13-cv-395 asserting that the Virginia law that bars same-sex marriage or prohibits the State's recognition of otherwise-lawful same-sex marriages from other jurisdictions in in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution [C2.3].

On 31 July 2013, the American Civil Liberties Union (ACLU), the ACLU of Virginia and Lambda Legal filed a federal class action lawsuit seeking the freedom to marry for all same-sex couples in Virginia as well as an end to Virginia's refusal to recognize marriages same-sex couples have legally entered elsewhere [C2.2], [R2.1].

R1.8 TheRichmondTimes-Despatch: Virginia Senate passes bill to protect religious opponents of gay marriage 07 FEB 17
R1.7 Virginia Senate committee approves two pro-LGBT bills 23 JAN 17
R1.6 TheAdvocate: Virginia Governor Vetoes Antigay 'Religious Liberty' Bill 30 MAR 16
R1.5 WDBJ7: Virginia Senate panel votes to leave gay-marriage ban in law
R1.4 GayStarNews: Married same-sex couples in Virginia are told they can adopt or foster children 11 OCT 14
R1.3 WashingtonBlade: Virginia lawmakers kill two pro-LGBT bills 20 JAN 14
R1.2 365gay.com: Amended Anti-Gay Law Becomes Law In Virginia 16 APR 04
R1.1 The Advocate: Virginia Will Not Seek Charges Against Same-Sex Couple 01 JUL 08
2. Courts & Tribunals
C2.25 Opinion: Michael Allen Littrell c. Samantha Mary Jo Cucco No. 160770 PDF 56.90kb 28 APR 16
R2.24 TheWashingtonPost: Virginia Supreme Court recognizes unmarried same-sex couples are legal too 02 MAY 16
C2.23 Mandate: Timothy B Bostic, et al., v. Michelle McQuigg, et. al. No. 14-1173 PDF 39.67kb, 06 OCT 14
R2.22 EdgeOnTheNet: Court: Gay Marriages in Virginia Can Begin Monday 06 OCT 14
C2.21 Orders: Order List: 574 U.S. PDF 433.43kb, 06 OCT 14
R2.20 FreedomToMarry: SCOTUS denies review of marriage cases, bringing the freedom to marry to 5 states 06 OCT 14
R2.19 GayNZ: Supreme Court discusses marriage 30 SEP 14
C2.18 Order in Pending Case: McQuigg, Michele v. Bostic, Timothy B., et al. 14A196 PDF 25.15kb, 20 AUG 14
R2.17 EqualityOnTrial: Supreme Court prevents same-sex marriages in Virginia from starting tomorrow 20 AUG 14
R2.16 LGBTQ Nation: Roberts sets Monday deadline for response in Va. marriage stay request 15 AUG 14
C2.15 Order Timothy B Bostic, et al. v. George E Schaeffer III, et al. No. 14-1167 PDF 29.68kb, 13 AUG 14
R2.14 ACLUofVirginia: ACLU of Virginia Praises Fourth Circuit’s Decision to Deny Stay in Marriage Case 13 AUG 14
C2.13 Opinion: Timothy A Bostic, et al. v. George E Schaeffer, et al. No: 14-1167 PDF 322.79kb, 28 JUL 14
R2.12 EqualityOnTrial: Fourth Circuit rules Virginia’s same-sex marriage ban unconstitutional 28 JUL 14
R2.11 DailyQueerNews: Fourth Circuit Court of Appeals Strikes Down Virginia’s Marriage Ban 29 JUL 14
R2.10 EqualityOnTrial: Virginia marriage equality case to be argued at Fourth Circuit Court of Appeals on May 13 20 MAR 14
R2.9 AFER: Appeals Court Hearing Date Set for AFER’s Marriage Case in Virginia 10 MAR 14
C2.8 Opinion and Order: Timothy B Bostic & Ors v. Janet M Rainey & Ors Civil No. 2:13cv395 PDF 1.98MB, 13 FEB 14
R2.7 TheGuardian: Virginia gay marriage ban overturned 14 FEB 14
C2.6 Memorandum Opinion: Joanne Harris et. al. v. Janet M Rainey et. al. No. 5:13cv077 PDF 1021.60kb, 1JAN 14
R2.5 LambdaLegal: Virginia Marriage Case Given Class-Action Status 31 JAN 14
R2.4 SDGLN: Federal court denies motion to dismiss in Virginia marriage case 23 DEC 13
C2.3 Amended Complaint: Timothy B Bostic et. al. v. Janet M Rainey & Another No. 2:13-cv-395 PDF 199.20kb, 03 SEP 13
C2.2 Class Action Complaint for Declaratory and Injunctive Relief: Joanne Harris and Jessica Duff et al v. Robert F McDonnell, Janet Rainey et al PDF 206.73kb, 31 JUL 13
R2.1 ACLU: Harris, et al. v. McDonnell, et al. 01 AUG 13
Parenting, Adoption, Fostering Legislation/Cases/References
1.

State

Virginian law does not specifically prohibit adoptions by homosexuals.


On 23 January 2015, the Senate Rehabilitation and Social Services Committee rejected 8-7 Bill SB679, a proposal to extend adoption rights to the partners of unmarried gay partners [R1.8].

On 10 October 2014, Governor Terry McAuliffe directed the Virginia Department of Social Services that adoption between same-sex spouses is now legal across the Commonwealth [R1.7].

On 24 January 2014, the Senate Rehabilitation and Social Services Committee by a 6-6 vote margin struck down SB 336, a bill that would have extended second-parent adoption rights to gays and lesbians [R1.6].

On 21 February 2012, the Senate voted 22–18 to pass legislation allowing private agencies to deny placements that conflict with their religious or moral beliefs, including opposition to homosexuality. The Bill only needs Republican Gov. Bob McDonnell's signature to take effect 01 July [R1.5].

On 03 February 2012, the state House voted 71–28 to pass a bill allowing private adoption agencies to deny placements that conflict with their religious or moral beliefs, including opposition to homosexuality. Earlier, a Senate committee endorsed its version of the Republican-backed measure in an 8–7 party-line vote [R1.4].

On 14 December 2011, the state Board of Social Services voted 5–1 to approve regulations that (from 01 May 2012) would allow private adoption agencies to deny services to people based on sexual orientation, age, disability or family status, among other areas [R1.3].

On 20 April 2011, the State Board of Social Services voted 7 to 2 to continue allowing faith-based organizations to discriminate against adoptions by gay couples [R1.2].

In August 2002, the Department of Social Services' consideration of an application reportedly "will be limited to whether the proposed placement is contrary to the interests of that child" [R1.1].

2.

Courts & Tribunals

On 08 January 2016, Virginia Beach Circuit Court Judge Steven Frucci ruled Lauren Renee Poole, despite not having a DNA connection to the boy born to the married couple in 2014, is as much of a parent as the estranged biological mother Karen Elizabeth Poole is to their child, and he intended to allow Lauren visitation rights with the child subject to any application by the guardian ad litem and leaving the question of custody yet to be argued (trial set down for 30 June 2016) [C2.3], [R2.2].

On 08 December 2014, Richmond Circuit Court Judge T J Markow ordered the Office of Vital Records in the Virginia Department of Health to amend the birth certificates to show Maria Hayman (the gestational mother) and Joani Hayman (the genetic mother) as the “only parents of the children” Flannan Finn Hayman and Merida Mirin Hayman, twin son and daughter born 13 June 2013 [R2.1].

R1.8 GayStarNews: Virginia Senate rules that unmarried gay couples cannot adopt 25 JAN 15
R1.7 GayStarNews: Married same-sex couples in Virginia are told they can adopt or foster children 11 OCT 14
R1.6 WashingtonBlade: Virginia Senate committee kills second-parent adoption bill 25 JAN 14
R1.5 FoxNews: Virginia legislature signs off on bill to let agencies deny adoptions to gay parents 21 FEB 12
R1.4 BostonGlobe: Virginia House approves anti-gay adoption rule 03 FEB 12
R1.3 Richmond Times-Despatch: Social Services board approves revised adoption regulations 14 DEC 11
R1.2 365Gay.com: Virginia rejects gay adoptions 21 APR 11
R1.1 Washington Post: Lesbian Wins Va. Assurances in Adoption Attempt 14 AUG 02
2. Courts & Tribunals
C2.3 Case: Lauren Renee Poole v. Karen Elizabeth Poole CL15002998-00 08 JAN 16
R2.2 abc13NEWSnow: Virginia Beach same-sex parental dispute case moves ahead 08 JAN 15
R2.1 SDGLN: Virginia: Lesbian couple win right to have names on twin's birth certificates 26 JAN 15
Taxation Legislation/Cases/Documents/References
1.

State

On 08 November 2013, the Virginia Department of Taxation issued a bulletin affirming that the state will not conform to the US Internal Revenue Service's new tax treatment of same-sex married couples because state law and a state constitutional amendment prohibit recognition of gay marriage [D1.2], [R1.1].

D1.2 Tax Bulletin 13-13: Virginia Income Tax Treatment of Same-Sex Marriage PDF 69.24kb, 08 NOV 13
R1.1 The Advocate: Virginia Bars Married Same-Sex Couples From Filing Taxes Jointly 03 DEC 13

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