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West Virginia Court Rules Anti-Gay Hate Crimes Aren't Hate Crimes

"If a man stands on a corner kissing a man and is beaten... has he been assaulted because of his sex?"

On Tuesday, the West Virginia Supreme Court of Appeals ruled that the state's hate-crime law doesn't include anti-LGBT bias incidents or any crime committed on the basis of sexuality.

The 3-2 decision marks a setback for civil rights advocates hoping to include crimes against LGBT people under the umbrella of sex discrimination.

Steward Butler/The Herald-Dispatch

West Virginia v. Butler stems from a 2015 case in which college athlete Steward Butler attacked two men for kissing in public.

According to the victims, Butler taunted them with homophobic slurs from his truck window before getting out to attack them. A grand jury later indicted Butler with battery and hate crime charges.

Given that West Virginia's civil rights code does not cover violence on the basis of sexual orientation, it was a surprising and significant victory. Prosecutors managed to convince the court that the attack was motivated by sex stereotyping, as Butler wouldn't have attacked if one of the men had been a woman.

Butler appealed and the decision moved on to the state Supreme Court, who heard further arguments. Cabell County prosecutor Lauren Plymale insisted it was "impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex."

Writing for the majority, Chief Justice Allen Loughry rejected that argument, claiming that the "common and ordinary meaning" of "sex" means "'being male or female'... [it] does not include 'sexual orientation.'" Loughry cited several dictionary definitions, ignoring numerous judicial precedents interpreting sex discrimination as including bias against victims because of their real or perceived sexual orientation or gender identity.

In her dissent, Justice Margaret Workman maintained "certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles."

"If a man stands on a corner kissing a man and is beaten because he is kissing a man, has he been assaulted because of his sex? Yes, but not simply because he possesses male anatomical parts," she continued. "Rather, the crime occurred because he was perceived to be acting outside the social expectations of how a man should behave with a man. But for his sex, he would not have been attacked."

In his opinion, Loughy also pointed out that West Virginia lawmakers have had many opportunities to add sexual orientation to the civil rights code, but havenet. This, he claimed, indicates they don't intend to protect LGBT people from hate crimes.

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