Virginia Democrats Are Using Same-Sex Marriage as Cover to Make ‘Gender’ a Protected Class

Commentary

What on earth does protecting same-sex marriage have to do with the word “gender”? That’s the million-dollar question Virginians should be asking proponents of Question 2.

Proponents of Virginia’s Question 2 want voters to believe that the proposed constitutional amendment is simply about protecting same-sex marriage. But Virginians should read the actual language before casting their ballots on Nov. 3.

The amendment does more than address marriage. By inserting the term “gender” into Virginia’s Bill of Rights, it invites a broader constitutional debate with consequences that could extend well beyond the marriage license.

If the objective is simply to protect same-sex marriage, why did the sponsors choose language that goes further?

In Obergefell v. Hodges, the U.S. Supreme Court framed the issue as whether states must license marriages between “two people of the same sex.” Congress likewise used the term “sex” in the federal Respect for Marriage Act.

Virginia’s sponsors could have followed that established terminology. Instead, they chose to prohibit the denial of marriage licenses on the basis of “sex, gender, or race.”

That additional word—“gender”—deserves scrutiny.

The term “sex” has an established place in U.S. law.

“Gender,” however, can carry different meanings depending on the legal context. In contemporary civil-rights debates, it may refer not only to sex but also to gender identity and gender expression. Further complicating this is the fact that there are endless definitions of “gender” and counting, as a quick Google search will reveal.

Question 2 does not define gender or explain how its inclusion should affect other constitutional questions. Once adopted, this language would become part of Virginia’s highest law, available to litigants seeking to challenge existing statutes and policies.

The amendment would not automatically rewrite Virginia law, but its broad language could furnish grounds for legal arguments that reach far beyond marriage. That is a risk voters should consider before permanently embedding the provision into the state constitution. 

Family law is an obvious area of potential dispute. Litigants could invoke the amendment in cases involving child custody, adoption, parental recognition, and laws that distinguish between mothers and fathers. Similar arguments could arise in cases of inheritance and probate disputes, as well as employment cases.

Whether these challenges would succeed depends on the particular law and how courts interpret the amendment. But constitutional language has a way of reaching beyond the immediate controversy that prompted its adoption.

Unlike ordinary legislation, constitutional provisions are difficult to revise. Voters should not be asked to approve broad language without understanding the legal uncertainty it could create.

And what about women’s privacy and safety?

The implications for sex-separated spaces also deserve serious consideration. Restrooms, locker rooms, changing facilities, and other vulnerable spaces raise legitimate questions about privacy, dignity, and safety.

The amendment does not expressly establish a general right to enter sex-separated facilities based on gender identity. Nevertheless, litigants could argue that its gender and equal-treatment provisions support challenges to policies distinguishing access by biological sex.

Women should not lose meaningful privacy protections because lawmakers failed to consider how competing legal principles might interact. Virginians deserve clear answers about whether existing protections could face new constitutional challenges—not assurances that the amendment concerns marriage alone.

Same-sex marriage is already recognized in Virginia under Obergefell and the federal Constitution. Those concerned about the continued presence of Virginia’s unenforceable marriage prohibition have a legitimate issue to address. But that does not explain why the proposed amendment introduces a separate and potentially consequential term.

The sponsors should explain why “gender” is necessary, what they believe it means, and how far its constitutional implications might extend. Dismissing those questions as opposition to equality is no substitute for answering them.

A constitution is not an experimental laboratory for unsettled legal theories. It is the foundation of a political community, intended to provide stable principles and enduring protections. Constitutional amendments should be drafted precisely, debated openly, and understood before they are adopted.

Question 2 may be advertised as a simple vote about marriage. Its language raises broader questions about how Virginia law will be interpreted in the future, from family relationships to women’s privacy and safety.

Virginians should not be asked to approve constitutional language first and discover its implications later. On Nov. 3, vote NO on Question 2 and insist that any future amendment be written with the precision and restraint that constitutional change demands.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.