Virginia’s Legislature Threatens to Open the Floodgates for Radical Gender Ideology

A mericans are increasingly waking up to the profound harm caused by the counterfactual claim that, with the help of drugs and surgery, men and women can change their sex. Lawmakers in Virginia, however, seem unaware of the moment.

On Tuesday, the Virginia House of Delegates passed a measure that, if eventually enacted, would amend the state’s constitution to eliminate language limiting marriage to “one man and one woman” and replace it with language creating a fundamental right for any two persons to marry regardless of their “sex, gender, or race.” For the most part, this restates existing law. The Supreme Court held in Loving v. Virginia that the 14th Amendment to the U.S. Constitution protects “the freedom to marry, or not marry, a person of another race.” And the high court held in Obergefell v. Hodges that the fundamental right to marry extends to same-sex couples.

However, the proposed Virginia amendment goes far beyond Loving and Obergefell by adding “gender” as a protected class in the state’s foundational legal document. That move presents a host of practical and legal problems. “Gender” is a fluid, malleable, and frequently evolving self-identification along a spectrum. Yet this amendment would give “gender” the same level of protection as well-defined, immutable, and traditionally protected categories such as race and sex.

Adding “gender” to the list of protected classes serves no real practical purpose. It has no impact on the legality of same-sex marriage — Virginia’s current constitutional language recognizes only a “union of one man and one woman” but says nothing about those individuals’ perceived gender identities. Indeed, advocates of radical gender-identity theory claim that any person, male or female, can assume nearly unlimited “identities” regardless of their actual sex. Gender identity, as a concept, is foreign to the idea of marriage.

However, including “gender” in the Virginia constitution’s definition of marriage would not be a harmless triviality. While the amendment attaches a right based on “gender” only in the context of marriage, courts often expand rights through creative legal interpretations. On that score, Virginia courts have found that the state constitution’s due process clause contains a “substantive” component, the same type of provision that the U.S. Supreme Court used to invent a right to abortion in Roe v. Wade and a right to same-sex marriage in Obergefell. So Virginia courts could try to extend rights based on gender identity in a variety of nonmarital contexts once it is embedded as a constitutionally protected class in one context.

The dramatic consequences of affording “gender identity” expansive protected status in the law have been demonstrated over the past four years by the Biden administration’s attempts to do just that using agency rule-making and interpretative guidance documents. Early in his presidency, Biden directed federal agencies to interpret statutes barring sex discrimination as including gender identity. Federal agencies eagerly obliged, reinterpreting a host of statutes, including Title IX, the Fair Housing Act, and even the Affordable Care Act.

The result was that schools were threatened with loss of federal funding if they refused to admit men to women’s restrooms, locker rooms, and showers; Christian colleges faced possible enforcement actions if they declined to admit men to women-only dorms; and charter schools that serve low-income students were threatened with loss of federal food aid if they failed to promote radical gender ideology.

These draconian consequences have led the American public to grow increasingly exasperated with gender ideologues’ radical agenda to abolish the concept of biological sex in favor of fluid categories of “gender identities.” The 2024 election starkly illustrates this. The New York Times reported that one 30-second Trump ad on the topic shifted the race a shocking 2.7 percentage points in Trump’s favor after viewers watched it; the ad featured podcast host Charlamagne tha God criticizing Vice President Kamala Harris’s support for taxpayer-funded surgeries for transgender prison inmates. It ended with the memorable tagline “Kamala is for they/them. President Trump is for you.” (Trump won the popular vote by 1.5 points.)

Post-election research that opinion firm Blueprint conducted found that swing voters who chose Trump cited as the leading reason for their choice Harris’s focus on “cultural issues like transgender issues” at the expense of “helping the middle class.”

Consistent with this shifting public sentiment, Trump has announced his intent to sign an executive order on day one announcing the “official policy of the United States government that there are only two genders: male and female.” The order would direct federal agencies to stop promoting radical gender ideology in sports, schools, the military, medical practice, and other contexts.

Given the rising unpopularity of gender ideology with the American public, it is no surprise that the sponsors of Virginia’s proposed amendment wrapped gender ideology in a cloak of “marriage equality.” Virginians with good-faith concerns over this proposal may thus be dissuaded from speaking out. But even more egregious, perhaps, is what is not included in the legislation — the proposed amendment conspicuously strips out the religious-liberty protections included in an essentially identical statute that the General Assembly passed last year.

The proposed amendment, then, is doubly dishonest. On the premise of securing a right to marriage based on characteristics that Supreme Court precedent already recognizes, the amendment would open the door to a radical and novel gender-identity agenda while refusing to recognize the foundational right to religious liberty. That’s a deal that Virginia voters shouldn’t countenance.