By DENA POTTER
RICHMOND, Va. – The board that oversees the state Department of Juvenile Justice has voted to ban discrimination based on sexual orientation at its facilities despite an Attorney General Office’s directive to strip out the protection.
The decision by the state Board of Juvenile Justice on Wednesday included the protection in proposed regulations it approved last year. The department recently removed the language during the final approval stage after the Attorney General’s Office advised that the board did not have the authority to ban discrimination based on sexual orientation because the General Assembly had not done so. Several legislative attempts to write protections based on sexual orientation into law have failed.
The board voted 3-0, with chairwoman Barbara Myers abstaining, to keep its proposed protections pending re-enactment at a special meeting, which could come later this month. At that meeting, the board wants advice from the Attorney General’s Office as to what would happen if they insist upon keeping the anti-discrimination language.
If the board changes the regulation, policies call for it to be sent back through executive review, where the governor, attorney general and budget officials examine it. That is where the changes were made last time, so it likely would lead to the same conclusion.
“We provide legal advice to our clients based on Virginia and applicable federal law,” said attorney general spokesman Brian Gottstein. “It is up to them whether or not they take that advice.”
Myers said she preferred to keep the language in the regulations, but it could delay implementation of the more than 300-page regulation, covering everything from background checks to housing.
“Our duty is to the well-being of these kids and those who work for them and with them. I think there’s not going to be a way to change this,” she said, adding that the department could instead insist on specialized training for staff.
“We would be doing more damage to the system saying we are going to dig our heels in and not let all these other regulations that folks have worked so hard to get,” she said.
Claire Guthrie Gastanaga, an attorney for the gay rights group Equality Virginia, said she was encouraged that the board stood its ground. She questioned the motives of the Attorney General’s Office, which under Republican Ken Cuccinelli has issued similar advice to public colleges and to the state agency that manages foster children, which led its board to stripping out anti-discrimination language against gays.
“In this case, the board is trying to implement constitutional and federal statutory requirements and they’re being told they can’t,” Gastanaga said. “And they’re being told they can’t for reasons that are political, not legal and not moral and not ethical.”
Gastanaga pointed to a national study that estimates 8 percent of boys and 23 percent of girls in juvenile detention identify the sexuality as other than heterosexual.
There are about 830 juveniles in the department’s custody, spokeswoman Robin Farmer said. She did not have estimates of how many of those might be gay.
“Although we know that there’s an issue in the facilities with the safety of these kids, we’re going to leave them out?” asked frustrated board member Aida Pachieco during the deliberations.
Ralph Thomas, deputy director of the department, said it already takes precautions to ensure the safety of those youth, and that assaults involving them are rare.
“We will not tolerate any sort of actions against them based on this,” he said. “So while it may not be a board policy but it’s certainly a practice that we would never tolerate in our facilities.”
Gastanaga and other board members questioned why the protections could not be put into the regulations.
“If everybody’s doing it and they all understand it to be the right thing to do, then why is saying it’s the right thing to do such a difficult hurdle to get over?” she said.
The board also asked the Attorney General’s Office for an opinion at its next meeting whether it can interfere with a department policy to reclassify youth offenders based on their crime.
Advocates and parents told board members that classifying youth based on crimes rather than their behavior since they’ve been incarcerated would not be fair to those who had excelled and earned more privileges. They also said it could disrupt educational and other services.
The department began reclassifying offenders in April and expected to finish moving them between facilities by September in time for school to begin.
Mark Gooch, chief deputy director of the department, said the department would “take under advisement” the board’s request to delay moving any more offenders until it could review the policy.
Gooch said offenders would keep their privileges and said the changes were necessary to keep violent offenders away from those who committed less serious crimes.
Board members expressed concerned that the policy was changed without their knowledge, but they weren’t sure if they had the authority to change it.
“I’m hesitant to overreach, but I’m also hesitant to underreach,” said board member Justin Wilson.