Virginia lawmakers redefined ‘sexual conduct’ to exclude homosexuality

The guidelines referenced the state code’s definition of sexual conduct as “actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such be female, breast.”

The law drew quick criticisms from LGBTQ+ students and advocates who worried that the inclusion of the term “homosexuality” could be interpreted to include any depiction of a romantic same-sex relationship. If a gay couple held hands in a graphic novel, depicting the now-forbidden “physical contact,” would that break the law?

The law could cast “all references to people in same-sex relationships as inherently sexual,” a group of students with the organization Pride Liberation Project wrote in a letter to the Education Department last year. “We are writing to you to ask that the Department of Education develop guidelines that explicitly state that instruction about LTBQIA+ people is not inherently sexual.”

This year, a number of lawmakers introduced bills to update the definition and strike the term “homosexuality.” None of the these was successful. But in a last-minute move, Sen. Scott A. Surovell (D-Fairfax) said he struck a compromise to get the code changed.

Sen. William M. Stanley Jr. (R-Franklin) had written a law to require age verification on online pornography sites. The measure won bipartisan support. When it came before the Judiciary Committee that Surovell served on, the Democrat offered his support in exchange for an amendment that removed “homosexuality” from the older law. When Stanley’s bill made it out of the legislature, Youngkin signed it.

“I said to Senator Stanley, ‘if you’d like to pass your bill, you need to make the definition the same,’” Surovell said. “So, basically I stuck my bill into his bill. This is a sort of a belt and suspenders thing, and he was willing to do that if that meant I wasn’t going to put meat on his bill and kill it.”

“Defining sexual conduct as including an open display of homosexuality, to me, reflected a very sort of archaic and prejudiced view as to what homosexuality is,” Surovell said.

Stanley did not respond to a request for comment.

Narissa Rahaman, executive director of Equality Virginia, said in a statement that the organization was happy to see the move from the legislature this year.

“For many LGBTQ+ Virginians, their identity is not merely an action, but rather a core part of who they are and how they move through the world,” Rahaman said. “To solely equate homosexuality with ‘sexual conduct’ is both minimizing and antiquated.”

The law requiring parental notification of sexually explicit materials became wrapped up in a larger debate earlier this year when some school divisions used the law to drive school library book challenges.

Other states have passed similar laws that ban sexually explicit materials from classrooms or require parental notification. It’s part of a national wave of restrictions on teaching race, sex and gender and a historic surge in book challenges.

A Washington Post analysis of book challenges found that 61 percent of challenges referenced this concern about “sexual content,” and 43 percent targeted titles with LGBTQ+ characters or themes.

In Virginia, the law was the driver behind Spotsylvania Superintendent Mark Taylor’s decision to remove 14 challenged titles from the school library in March. He argued in a memo that because library books are classified as “instructional material,” the books make it difficult to comply with the state law requiring parental notification of sexually explicit material. The easiest solution, he said, would be to remove the books from the library.

“I find that none of the 14 books listed above truly needs to be included in any SCPS school library,” Taylor wrote. “This decision is crafted to achieve the least disruptive, most efficient, and most cost-effective means to ensuring our division’s compliance with division policy and state law.”

The school board then voted 4-3 in May to enact a policy that made it easier for books to be removed from the library if they contained sexually explicit material. The decision came after dozens spoke during public comment, and it drew quick criticism from the ACLU of Virginia as a stretched interpretation of the law.

“Spotsylvania’s school board is basing their heavy-handed policies on a misinterpretation of Virginia code. No school board — and especially not a single superintendent — should be able to ban books on the basis of whether they personally find them to be ‘sexually explicit,’” ACLU of Virginia Policy Director Ashna Khanna said in a statement at the time.

State Sen. Siobhan S. Dunnavant (R-Henrico), who introduced the law requiring parental notification, said in an interview that she did not intend for the law to be used as a basis for challenging library books. She said she specifically included language in the bill that passed that said the law was “not be construed as requiring or providing for the censoring of books in public elementary and secondary schools.”

“When I was writing that bill, I really thought that I’d been very clear in that,” she said. “And so it never crossed my mind that books were going to come up.”

Dunnavant was one of the lawmakers to introduce legislation to change the definition of “sexual conduct this year.” She said the move was in response to advocates who had voiced their concern about the interpretation of the inclusion of “homosexuality.”

“I’m sensitive to tolerance. I don’t ever want something to be misconstrued and really make somebody feel diminished or demeaned in any way, and so I thought it was a fair point when it was brought to me in the summer of ’22. And so when I went back in ’23, I had made a commitment to fix it,” Dunnavant said.