By David Mattera, Legislative Associate
Dr. Martin Luther King, Jr. once said, “The arc of the moral universe is long, but it bends toward justice.”  He meant that progress is slow, but inevitable.  In Virginia, we’d like to believe that, but our arc is much straighter than it should be.
For the past several decades, the Governor of the Commonwealth, upon entering office has issued an executive order banning discrimination in state employment on the basis of race, religion, gender, national origin and, later, disability.  Although these orders sent an important message to voters and state personnel, they were largely symbolic since such discrimination was already banned under state and federal statutes.
Eight years ago, though, Governor Warner added protection for sexual orientation to his executive order, and four years later Kaine followed suit.  Since discrimination against gays and lesbians is not expressly prohibited under any federal or state statute, the executive order, following the curve of King’s arc, had become part of real progress.
Unfortunately, Governor McDonnell has taken us a couple of steps backwards.  First, he did not follow the symbolic tradition of issuing his executive order immediately upon taking office; it took him three weeks.  Second, when he finally did issue the order, he left out protection on the basis of sexual orientation.
It was gratifying to see that some legislators have taken it upon themselves to correct the problem once and for all by adding to the Virginia Code a version of the executive order that includes sexual orientation as a protected class.
Now, though, we come to another familiar roadblock.  SB 66 (McEachin) has passed the Senate by a slim margin while HB 1116 (Ebbin) has been killed before reaching a full committee vote.  When crossover arrives next week, the fate of SB 66 in the hostile House is fairly certain.
So where does this leave us?  What does this mean for the thousands of gay, lesbian, bisexual and transgendered Virginians employed by the state who are no longer protected by the Governor’s executive order?  Well, they can still make an equal protection claim under the U.S. Constitution, but that means challenging any employment discrimination they face in federal court, a dauntingly expensive and time-consuming action that is simply not realistically available to most of us.
Virginia is not only not keeping up with the many other states that have banned discrimination against their employees on the basis of sexual orientation, but has moved backwards, straightening out King’s arc at the very point where it should be bending toward justice.