West Virginia Rules That Anti-LGBT Assaults Don’t Constitute Hate Crimes

The West Virginia Supreme Court of Appeals ruled in a 3-2 decision that the state does not explicitly grant hate crimes protections to LGBT individuals, highlighting an ongoing and nationwide legal argument. 

Siding with a lower court, the Court of Appeals determined that the state’s existing hate crimes law, which protects people on the basis of sex but not sexual orientation, does not cover LGBT people under a plain reading of the law.

The court noted in its opinion:

A review of similar laws from other states demonstrated that ‘there are two distinct categories of potential discrimination: discrimination based on sex and discrimination based on sexual orientation. [The] West Virginia legislature could have included sexual orientation as an area of protection … [as] [n]umerous other states have done.

The case revolves around an April 2015 incident in which Steward Butler, a former running back for the Marshall University football team, attacked two men after he witnessed them kissing in public.

Butler allegedly saw the men — Casey Williams and Zackary Johnson — from his car, shouted homophobic slurs at them and then punched them in their faces. He also reportedly knocked one of the men to the ground.

As a result, Butler was charged with two misdemeanor counts of battery. The prosecution also sought to bring heightened hate crimes charges, and that is where the legal dispute began.

The state’s administration found itself in an odd position during this trial. Given that it is routine for the state attorney general to enforce state law, Patrick Morrisey —  a Republican — would usually be tasked with examining felony charges for a hate crimes conviction. But Morrisey argued that those charges weren’t applicable in this case.

AG Morrisey has not said whether he personally believes that such an attack should fall under the classification of a hate crime. However, he made clear that West Virginia lawmakers have, on several occasions, had the opportunity to write sexual orientation-inclusive language into the state’s hate crimes statute – and always voted against it.

As a result, the attorney general contends that the courts cannot, in effect, create a protected class.

“The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law,” Morrisey’s office stated. “That authority lies with the state Legislature and this decision preserves that balance. I’m not saying the opinion that the law shouldn’t be changed and neither did the court. But at the time that this occurred, the law of West Virginia did not include that class as protected by the law.”

Of course, this opinion does not come without wider significance. Obviously, the U.S. has an LGBT-inclusive federal hate crimes law, but across the country, there is an ongoing legal debate as to whether these sex discrimination protections also, by extension, protect LGBT people.

The Obama administration backed this interpretation, and several courts have found the argument convincing. Regardless of whether Congress has specifically met the question of discrimination based on LGBT identity, it has decided that facing discrimination on the grounds of failure to meet sex expectations is unconstitutional.

As such, whether someone faces discrimination for their asserted gender identity or, as in this case, they face violence for being part of a same-gender couple, the law already protects them.

The dissenting opinion in this case agreed with that logic and argued that to oppose LGBT-inclusivity, one has to perform a reading of sex discrimination that is willfully blind to the overlap.

Republican lawmakers in particular have been leery of this interpretation, and often for less than generous reasons: namely, they don’t believe we should protect LGBT people.

Nevertheless, even some who do support the community believe that, in terms of good lawmaking, we should recognize that while sex discrimination can extend to discrimination surrounding LGBT identity, anti-LGBT discrimination may present as its own special brand of animus. And, therefore, it requires specific statutes. They argue that extending existing laws may not be the best solution.

The nature of this case is complex, and it is telling that partisan politics seem to be at play as to whether individual courts will recognize an LGBT-inclusive view of sex discrimination. For their part, LGBT rights groups have said that this case is one among many that highlight the need for individual states to act and create LGBT-inclusive hate crime laws.

GLAAD President Sarah Kate Ellis explained: “At a time when anti-LGBTQ hate violence is on the rise, this ruling reiterates the need to advocate for LGBTQ-inclusive hate-crime laws in all states across the nation.”

In this instance, the case now returns to the lower courts where the battery charges will be weighed. There has been no word on any action to amend the state’s hate crimes statute to specifically include LGBT people.

If anything, this case makes it all too clear that specifically protecting LGBT people at both the state and federal level is a must.

Photo Credit: Matt Popovich/Flickr

70 comments

Philippa P
Philippa Powers2 months ago

Thanks.

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Margie F
Margie F3 months ago

Thank you

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Patrice Z
Patrice Z3 months ago

Can this case go to a federal court?

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Carl R
Carl R3 months ago

Thanks!!!

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Freya H
Freya H3 months ago

Shame on West Virginia's excuse for a government! We The People reject this bulls**t. RESIST and PERSIST! If you live in West Virginia, make sure you are registered to vote, then support genuinely progressive candidates.

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Leo Custer
Leo C3 months ago

Thank you for sharing!

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Christine V
Christine V3 months ago

They are hate crimes.

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Karen H
Karen H3 months ago

Maybe we should call them "fear" crimes. People react violently when they fear something. And they fear things they don't understand. A little education goes a long way.

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Joan E
Joan E4 months ago

Republicans are leery of acting fairly toward minority populations of any type.

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Bill E
Bill E4 months ago

Dumb ruling. Just so wrong

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