Herring on Sex

If you watch the news, you’d think the nation is fascinated with sex.  Well, not that kind.  You know, the definition, as in male and female, and whether or not believing that we were created as male and female is hateful bigotry to be stomped out by the government.

Just ask North Carolina.

So, last fall, when state legislators asked Attorney General Mark Herring what he thinks is the definition of sex and how it applies in our state’s “non-discrimination” law, who knew it would take him more nearly eight months to figure it out?  But only after being threatened with legal action by Delegate Dave LaRock (R-33, Hamilton) for not responding to the inquiry do we have a response – and it’s a dozy. 

Never one to simply follow what the written law actually says if it does not conform to his ideologically rigid agenda, Attorney General Herring this week issued a 19-page official “advisory opinion” on the question of what the term “sex” means under state law and what that means for non-discrimination law.

Ordinarily, parents need only a few sentences to explain to their children the reality of and difference between boys and girls, if any explanation is necessary at all.  So it’s pretty remarkable that the state Attorney General required 19 in-depth pages of legal gymnastics to explain the word.  Except, rather than merely stating what the law says (or science for that matter), it's clear that Herring was doing his best to actually change the meaning of “sex” or “gender.” (The Va. Code and case law use both terms interchangeably.)

The advisory opinion, characterized by legal cartwheels, sidesteps and stretches, is ultimately a bizarre attempt to expand the term “sex” or “gender” under law to also mean both “sexual orientation” and “gender identity,” while all the time using words like “could” our “would” or “maybe,” but not actually coming out and saying it as fact.  In fact, for all of Herring’s effort to fundamentally change the plain and long-standing definition of sex and gender in Virginia, he states he’s not aware of any case law in Virginia that holds that the definition of sex includes sexual orientation or gender identity, but its “likely” the courts would rule that way.  Maybe.  I guess.  Probably.

This from the state’s “top” lawyer. 

As one of the opinion’s more deceptive points, the AG cited the first part of one Va. Code section contained in the “Virginia Human Rights Act” as the main basis of his argument to change the meaning of sex/gender in state law.  All the while, he failed to cite or even mention the very next sentence of that same statute, wherein the Va. Code specifically addresses all other possible meanings of the term “sex” or “gender,” and it doesn’t include what the AG wants it to include. 

It’s interesting to note that in the lawsuit brought by his friends at the ACLU against the Gloucester County School Board for its policy offering an alternative restroom for those struggling with sexual identity, Virginia’s Attorney General has yet to weigh in.  As far as we can tell, he hasn’t offered a “friend of the court” brief one way or the other.  Perhaps it’s a lot harder to redefine sex as opposed to redefining marriage?

Many more than 19 pages could be written critiquing the AG’s “opinion.”  But that won’t be necessary because, in fact, we agree with the Attorney General’s finding that no court with authority in Virginia has ever found “sex” or “gender” to include either “sexual orientation” or “gender identity.”  We just happen to believe that’s a good thing.