News Sexuality

Virginia Gubernatorial Candidate Wants to Outlaw Oral Sex

Martha Kempner

Virginia Attorney General Ken Cuccinelli says his only motivation for seeking to reinstate a law banning oral and anal sex between consenting adults, which was found unconstitutional, is to protect children from sexual predators.

Virginia Attorney General Ken Cuccinelli, who is also the Republican candidate for governor of that state, launched a website this week in support of his efforts to reinstate the Commonwealth’s “crimes against nature” law. Though the law, which was found unconstitutional, bans oral and anal sex between consenting adults, Cuccinelli swears that his only motivation is to protect children from sexual predators. His new website, www.VAChildPredators.com, includes a map of the state with teardrops marking the location of 90 sexual predators. The website asserts that unless this law is upheld, these offenders will come off the list, endangering children all over Virginia.

Some aspects of the law in question deal with prostitution, public sex, and acts other than those between consenting adults. Other sections, however, clearly make certain, common, sexual behaviors criminal regardless of who is involved. The law reads, in part, “If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony.”

Anti-sodomy laws such as this one often have been used against homosexual men engaging in consensual sex. In the 2003 case Lawrence v. Texas, the U.S. Supreme Court found these laws to be an unconstitutional violation of the due process clause. Like many states, Virginia kept its law on the books despite this ruling. In 2004, there was a bipartisan effort in the Virginia general assembly to rework the law—by keeping the parts dealing with prostitution and nonconsensual sex but removing the others—to bring it in line with the Lawrence decision. Cuccinelli, who served in the state senate at the time, voted against these changes.

The state continued to prosecute adults under some provisions of the crimes against nature law until last March, when a three-member panel of the United States Court of Appeals for the Fourth Circuit struck down the law as unconstitutional in a case involving a 47-year-old man who had sex with a 17-year-old girl. The court found that since the law was unconstitutional in all circumstances, it could not be used to convict the 47-year-old. As attorney general, Cuccinelli filed a petition asking for the full 15 members of the court to review the decision. The petition argued that “a reasonable state court could conclude that Lawrence did not wholly invalidate Virginia’s sodomy statute.”

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This is essentially the argument Cuccinelli continues to make as he runs for governor. He is suggesting that only the crimes against nature law can possibly protect young people against sexual predators and that as such it needs to be reinstated. It is unclear how he plans to get past the law’s unconstitutionality, nor is it clear why he is not instead working to create new laws with the same goals. Cuccinelli says that his intention is not to use the law against consenting adults, but ThinkProgress points out that it’s hard to take him at his word given his past comments on homosexuality in particular. In 2009, Cuccinelli told a newspaper, “My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law.”

Playing up parents’ fears of sexual predators may get Cuccinelli some support—perhaps until those same parents realize the law could make aspects of their own sex lives illegal.

News Law and Policy

Virginia School Board Wants Supreme Court in Fight Over Transgender Student Bathroom Access

Jessica Mason Pieklo

The Gloucester County School Board wants the Supreme Court to decide whether federal law requires schools to let transgender students access facilities such as bathrooms that conform to their gender identity.

A Virginia school board will ask the U.S. Supreme Court to step into the fight over bathroom access for transgender students in the first real legal test of the Obama administration’s agency actions on the issue.

The case involves Gavin Grimm, a Gloucester County student who, in 2015, challenged his school’s policy of separating transgender students from their peers in restrooms and mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity.

As previously reported by Rewire:

Grimm’s attorneys at the American Civil Liberties Union argued that the restroom policy, which effectively expels transgender students from communal restrooms and requires them to use “alternative … private” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

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The school board defended its policy, arguing that it was consistent with federal law and that it protected the privacy rights of other students at Grimm’s school.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy. A lower court initially sided with the school board; Grimm’s attorneys appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed the lower court and ruled that Grimm’s lawsuit against his school could proceed.

On Tuesday the Fourth Circuit agreed to put its decision on hold while the school board filed a petition asking the Supreme Court to step in. The board is arguing that the Obama administration has gone too far on transgender rights, beginning in 2012, when it issued an initial agency opinion that refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

In October 2015 the administration took that opinion one step further and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy specifically violated federal law. Then, in May this year, the administration expanded that opinion into a directive. Though it still didn’t have the force of law, the directive put all schools receiving federal funding on notice: Should they deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law and subject to lawsuits. The Fourth Circuit relied heavily on this guidance in siding with Grimm earlier this year.

It is not clear whether the Roberts Court will step into the issue of transgender students’ rights at this time. So far, no other federal appeals court has weighed in on the issue.

Meanwhile, 22 states have filed a lawsuit challenging the Obama administration’s 2016 directive, arguing that the administration overstepped its authority. That lawsuit is also in its early stages.

Both Grimm’s lawsuit and the states’ lawsuit in response suggest the issue of transgender rights and sex discrimination will end up before the Roberts Court at some point.

News Law and Policy

Virginia School Board Asks Supreme Court to Step In on Trans Rights

Jessica Mason Pieklo

Attorneys representing a Virginia school board want the Supreme Court to block the Obama administration's efforts at protecting transgender students.

Lawyers for a Virginia school district, according to a Tuesday filing, will ask the Supreme Court to intervene in the case of a transgender student who has sued for the right to use school bathrooms consistent with his gender identity.

The case involves Gavin Grimm, a transgender student who sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender.” Grimm’s attorneys argue that the rule, which effectively expels transgender students from communal restrooms and requires them to use “alternative” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy, but the lower court refused, ruling the school board’s policy did not violate the ban on sex discrimination in Title IX. The lower court also ruled the privacy interests of other students outweighed potential harm to Grimm in using a different bathroom. Grimm’s attorneys appealed.

In the interim, the Obama administration stepped in filing an appellate brief on Grimm’s behalf and arguing the Department of Education’s official position was that Title IX protected Grimm’s rights to use a restroom consistent with his gender identity. And in April, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled in favor of Grimm, holding “the [Education] Department’s interpretation of its own regulation … as it relates to restroom access by transgender individuals, is entitled to … deference and is to be accorded controlling weight in this case.”

The full panel of judges for the Fourth Circuit refused in May to rehear the case, leaving in place the original order.

The petition to be filed with the Roberts Court asks the justices to re-examine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent states federal agencies like the Department of Education have substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX.

Earlier this term the Court turned away a similar challenge to the Department of Education’s interpretation of its regulations with regards to student loan financing.

According to attorneys for the school board, the Roberts Court must take up the Grimm case because the fight over transgender student bathroom access “raises fundamental issues of bodily privacy rights” in addition to serious questions about agency authority and constitutional separation of powers.

The petition will also ask the Roberts Court to issue a stay of the Fourth Circuit decision.

Attorneys representing Grimm will have an opportunity to respond to the filing. Given the Roberts’ Court current calendar, should the Court agree to take the case, the earliest it would hear arguments is next year.