The recent reporting on Bill 34-0271 – an act to guarantee equal protection rights to people regardless of sexual orientation – has created quite a stir in social media with some very outspoken comments opposed to this legislation. The bill is co-sponsored by Senators Marvin Blyden and Janelle K. Sarauw.
The most common question seems to be “Why do we need a new law when LGBTQ rights are already protected by U.S. federal law?” Although on its surface this may seem like a legitimate question, the reality is that there are three fundamentally flawed assumptions inherent in the question.
As background, we need to understand several things: (1) is there a federal law protecting LGBTQ rights? (2) does that law apply to the U.S. Virgin Islands? and (3) is Bill 34-0271 a new law?
To answer the first question, the basis for LGBTQ anti-discrimination protection in the 50 states stems from two things. First, the Civil Rights Act of 1964 bars discrimination on the basis of race, color, religion, sex or national origin. Notably “sexual orientation” is not included in this list. However, on June 15, 2020, the U.S. Supreme Court decided that the word “sex” in the federal Civil Rights Act included “sexual orientation” and so, through a combination of law (the 1964 Civil Rights Act) and judicial opinion (the 2020 Supreme Court decision), certain LGBTQ rights are protected in the 50 states.
So, LGBTQ rights are currently protected in the states, but since that protection is partially based on a Supreme Court ruling, as we have seen recently in Roe v. Wade, what the Supreme Court gives it can also take away.
As to the second question – does U.S. federal law apply to the U.S. Virgin Islands – the simple answer to that question is no, federal law does not generally apply here. This may come as a surprise to many people, but it is a consequence of the fact that the USVI is not one of the 50 states, and we are not governed by the U.S. Constitution in the same way as the states are. We are governed by the Revised Organic Act and the Revised Organic Act explicitly recognizes some but not all of the protections of the U.S. Constitution.
In particular, the “Supremacy Clause” of the U.S. Constitution, which states that federal law is “supreme” over state law, is not one of the provisions applicable to the USVI under the ROA [Revised Organic Act]. This means that federal law does not automatically apply to the Virgin Islands unless it is made explicit that it does.
In the case of the 1964 Civil Rights Act, it does explicitly include the Virgin Islands and Puerto Rico, so we are, fortunately, covered by the protections of that particular law, but we are not, in general, subject to all federal laws.
Finally, it appears that many people are not aware of the fact that we already have a Virgin Islands Civil Rights Act which mirrors most of the provisions of the federal Civil Rights Act. Title 10 of the Virgin Islands Code lays out the protections against discrimination on the basis of “age, race, creed, color, national origin, place of birth, sex, disability and/or political affiliation;” however, like the federal law, it does not specifically mention “sexual orientation.” So, the bill introduced by Senator Sarauw is not a “new law” as some believe. The bill simply adds two words – “sexual orientation” – to the existing law in order to guarantee that LGBTQ people have the same civil rights and protections as all other people.
Do we need this amendment to the Virgin Islands Civil Rights Act? If you were a person who practices the Muslim religion, a person of Asian descent, a disabled person or a member of any other minority group, you most certainly would feel that the protections of the Virgin Islands Civil Rights Act are critically important, regardless of what exists in federal law. So, do we need to protect the rights of LGBTQ Virgin Islanders in our communities? Most certainly we do, and Bill 34-0137 does just this by simply adding two words to our existing Virgin Islands Civil Rights Act.
Kudos to Sen. Sarauw and her co-sponsor Sen. Blyden and all of the other supporters in the 34th Legislature for pushing this bill forward.
— David Silverman, Coral Bay, St. John