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Governor McAuliffe on Thursday issued Executive Order 61, which his office said will “advance the cause of equality in Virginia” by requiring all future state contractors with the Executive Branch to agree to a non-discrimination policy that includes discrimination based on sexual orientation or gender identity.

This action builds on Executive Order Number 1 by extending the same protections offered to state employees to the employees of contractors that do business with the Commonwealth.

“As my first act as Governor, I signed Executive Order 1 to ban discrimination in the state workforce based on sexual orientation, take divisive social issue battles off the table and help build an open and welcoming economy,” said McAuliffe, speaking during the Jan. 5 announcement. “Starting today, the Commonwealth of Virginia will not do business with entities that discriminate based on sexual orientation or gender identity. Virginia is home to the best state workforce in the country and this policy will ensure there is no question that all Virginians are to receive the full benefits of their citizenship, without regard to their sexual orientation or gender identity.

“If we are going to have the economic future we want, we have to send a clear and inclusive message about what and whom we value, and the kind of respect and opportunities that talented people will find in Virginia,” said Attorney General Mark Herring. “Thanks to Governor McAuliffe, Virginia will be setting the right example and embracing a commonsense step that so many private sector businesses have already taken, and that they increasingly expect from the states in which they choose to locate and do business.”

Not surprisingly, some more conservative members of the Virginia General Assembly have taken umbrage with McAulliffe’s executive order, including State Delegate Bob Marshall (R-13th) who on Friday issued his own bill, HB 1667, and released the following statement:

Year after year, the General Assembly has rejected bills seeking to add sexual orientation and gender identity to state employment special protections. Despite this, Governor McAuliffe took the law into his own hands yesterday and in effect enacted legislation through Executive Order #61, requiring every company that contracts over $10,000 in business with Virginia to include special protections for lesbian, gay, bi-sexual, transgender and queer (LGBTQ) individuals.

In response I introduced HB 1667 to prevent McAuliffe from imposing his new and unauthorized sexual conditions for state contracts. Every Democrat and Republican Attorney General before 2014 has understood Virginia’s Constitution to mean that a Governor cannot add sexual orientation or other “protected classes” to Virginia law without the General Assembly’s approval.

My HB 1667 prohibits Virginia and localities from requiring any contractor entering into a public contract to agree to nondiscrimination provisions with respect to gender identity or sexual orientation not authorized by the General Assembly. HB 1667 grants civil immunity for any business or nonprofit that does not provide any benefit or accommodation with respect to gender identity or sexual orientation

McAuliffe’s ambitious and nebulous Executive Order contains no definition of “gender orientation.” ABC News reports there are 58 “Gender Options.” The Daily Beast counters there are only 51. Slate suggests there are 56 gender identifies. What’s a business to do?

Make no mistake: Neither Governor McAuliffe nor the LGBTQ advocates who want to destroy the livelihood of photographers, caterers, bakers, florists, musicians and others who refuse to “celebrate” same-sex “marriage” will be satisfied with merely symbolic victories.

How will McAuliffe’s political allies ensure businesses comply with this Order? How will the privacy of employees be protected? Since sexual orientation and gender identity are internalized subjective perceptions, how can a business possibly know these facets of a prospective employee's life without asking? Will Virginia’s government and businesses now be required to determine and disclose every employee’s sexual identity and behavior?

If a business did not hire an individual for because they felt they were not the best qualified for the job and the person turned out to be in McAuliffe’s protected class of persons, could that business be denied a state contract? Could a homosexual or transgender individual not hired by the Commonwealth now sue to be hired? Can a homosexual or transgender individual ever be fired from a job without threatening their employer’s contracts with the state of Virginia.? How many businesses will hire homosexual and transsexual persons if they fear they can never fire them for bona fide work related reasons?

What evidence does Governor McAuliffe have that businesses with state contracts are “discriminating” on sexual grounds in employment? If he has evidence, he should point it out.

In November, 2013 when MCAuliffe was elected, Virginia was the #1 state for business according to Forbes Magazine. Under McAuliffe’s liberal policies we have now slipped to #6. North Carolina, with its law protecting the public from open bathrooms is #2 on Forbes’ list. North Carolina had budget surpluses for the last two years while McAuliffe announced a $270 Million deficit with more coming.

The Governor should refrain from imposing new categories for special employment protections based on sexual behaviors and get back to promoting all businesses, period. A business owner or state contractor should be free to hire and fire employees based on their performance, not their sexual behavior or orientation, without fearing denial or loss of a state contract.

The Department of General Services and the Virginia Information Technologies Agency are directed by Gov. McAuliffe to impose sanctions under the Virginia Public Procurement Act, including but not limited to termination of the contract and disbarment of state contracting for violating this policy.

Section II of the Governor’s Order directs the Department of Human Resource Management “to promulgate appropriate policies in the Commonwealth’s Standards of Conduct to implement these requirements.” I can hardly wait to read what the requirements will be.

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