Queer History Research in Virginia

State and federal statutes, executive orders, legal opinions, and court decisions have shaped the lives of queer Virginians. In addition to prohibiting sexual acts, state and federal law has determined queer Virginians' rights to express their gender, marry, become parents, and seek legal remedies against discrimination.

Researching queer legal history can be challenging. Locating and interpreting sources requires familiarity with historical terminology and attitudes related to gender and sexuality. Gender and sexuality intersected with other social and legal categories, such as race, class, and enslaved status.

Below are resources for researching queer legal history at the Library, with an emphasis on Virginia statutory and case law.

Research Guides

Additional Sources

Key Statutes and Executive Orders, 1610–2020

Colonial Law

• Colonial Virginia's first law regulating same-sex sexuality appears in Dale's Code, a collection of laws in force at Jamestown between 1610 and 1618. Dale's Code prohibited "the horrible, and detestable sins of Sodomie," a term that encompassed a range of prohibited sexual behaviors.
• After 1618, Virginia relied on existing English law to regulate sexuality and gender expression.

State Laws and Executive Orders

• Following statehood, Virginia enacted its first sodomy law in 1792. Statutes prohibiting sexual acts between both same-sex and different-sex partners were in force throughout the nineteenth and twentieth centuries. Between 1800 and 1860, state code mandated the death penalty if the convicted person was enslaved.
• In 1848, Virginia banned the distribution and possession of publications "containing obscene language, or obscene prints, pictures, figures or descriptions, manifestly tending to the corruption of the morals of youth." Between 1922 and 1966, the State Board of Censors (later Division of Motion Picture Censorship) was tasked to ban films that were "obscene, indecent, immoral, inhuman, or is of such a character that its exhibition would tend to corrupt morals or incite to crime." In 1970, the phrase "acts of... homosexuality" was added to the definition of "sexual conduct" that appeared in Virginia's obscenity law.
• Two 1956 statutes gave the Alcoholic Beverage Control Board the explicit authority to suspend or revoke the liquor licenses of establishments where "homosexual" individuals congregated. A 1968 ABC statute included a provision prohibiting the employment of "any person who has the general reputation as a[...] homosexual."
• In 1975, 1997, and 2004, the General Assembly enacted statutes prohibiting the legal recognition of same-sex marriage in Virginia. In 2006, the marriage ban was enshrined in a constitutional amendment.
• A 1979 law permitted transgender individuals who had undergone "a change of sex by medical procedure" to request a change to the sex on their birth certificate.
• Laws in 2000 and 2004 created misdemeanor and felony penalties for HIV-positive individuals who failed to disclose their status to sexual partners, disproportionately criminalizing gay and bisexual men. 
• In 2005, an executive order prohibited state workers from discrimination on the basis of sexual orientation. This policy was rescinded in 2010. In 2014, a new nondiscrimination order protected both sexual orientation and gender identity and expression.
• In 2020, legislation to expand LGBTQIA+ civil rights included statewide protections against discrimination on the basis of sexual orientation and gender identity, modernized laws addressing the right to change gender markers on identification, and a partial repeal of HIV criminalization laws.

Local Ordinances

• In 1988, Alexandria amended its human rights ordinance to bar discrimination on the basis of sexual orientation.
• Between 1992 and 2020, Arlington County, Charlottesville, and Richmond prohibited discrimination on the basis of sexual orientation and/or gender identity.

Colonial Sources

• McIlwaine, H. R. Minutes of the Council and General Court of Colonial Virginia. 2d ed. Richmond: Virginia State Library, 1979.

State and Federal Sources

• See Archival Records for information about searching local and state court records.
• Virginia Office of the Attorney General. Report of the Attorney General. Richmond: N.p, 1855–.

Key Legal Decisions, 1607–2020

• 1624–25: Ship captain Richard Cornish was tried and executed in Virginia for buggery after his nineteen-year-old crewmember, William Couse, accused him of rape.
• 1629: Thomas/in Hall, an intersex servant, was tried in the Virginia Quarter Court. Born Thomasin and known as Thomas, Hall testified that they were "both man and woman" and wore male and female clothing at different times. The court ordered that Hall be considered "both man and a woman" and wear male and female clothing.
• 1968, 1967-1968 Op. Va. Att'y Gen. 76: The Attorney General of Virginia published an opinion stating that same-sex solicitation, where not prohibited by statute, could be prosecuted as a common law crime.
• 1976, Doe v. Commonwealth's Attorney of Richmond (425 U.S. 901): The US Supreme Court affirmed a federal district court decision upholding the constitutionality of Virginia's "crimes against nature" law. This case originated with two anonymous gay men who filed a federal suit challenging the statute.
• 1976, Gay Alliance of Students v. Matthews (544 F.2d 162): After Virginia Commonwealth University rejected a gay student group's application for official status, the US Court of Appeals for the Fourth Circuit ruled that VCU had violated the students' constitutional rights and must recognize the Gay Alliance.
• 1985, Roe v. Roe (324 S.E.2d 691): The Supreme Court of Virginia denied a father joint custody of his child because he lived with his male partner. This case was a precedent for Bottoms v. Bottoms (below).
• 1991, French Quarter Cafe v. Virginia Alcoholic Beverage Control Board: In response to a lawsuit by a Virginia by an Alexandria business owner, the College of William and Mary Gay and Lesbian Alumni group, and a Montgomery County, VA activist, the US District Court for Eastern Virginia ruled that Virginia's anti-gay bar statute was unconstitutional.
• 1995, Bottoms v. Bottoms (457 S.E.2d 102): In 1993, Kay Bottoms sued her daughter, Sharon Bottoms, for custody of Sharon's son, alleging that Sharon's same-sex relationship made her an unfit parent. The Supreme Court of Virginia affirmed the circuit court's decision to grant custody to Kay Bottoms. This case was widely publicized and inspired a 1996 made-for-TV movie.
• 2000, Arlington County v. White (528 S.E.2d 706): The Supreme Court of Virginia ruled that Arlington County's policy of expanding health care benefits to same-sex partners violated the Dillon Rule.
• 2013, MacDonald v. Moose (710 F.3d 154): The US Fourth Circuit Court of Appeals overturned Virginia's "crimes against nature" statute, following the 2003 Supreme Court precedent of Lawrence v. Texas (539 U.S. 558).
• 2014, Bostic v. Schaefer (760 F.3d 352): In 2013, two same-sex couples challenged Virginia's same-sex marriage ban in federal court. In 2014, Attorney General Mark Herring declined to defend the Commonwealth. Both the district court and US Fourth Circuit Court of Appeals found the ban unconstitutional. In October 2014, the Supreme Court allowed this ruling to stand, allowing same-sex couples to legally marry in Virginia.
• 2020, G.G. v. Gloucester County School Board (972 F.3d 586): The US Fourth Circuit Court of Appeals found that a Virginia public school policy requiring a transgender male student to use the girls' restroom violated his civil rights, a decision that the Supreme Court left intact.