Not a Hate Crime, WV Supreme Court Determines about Attack on Gay Men

In April 2015, Steward Butler was in his car at a stoplight when he saw two men kissing on the sidewalk. He directed homophobic comments toward them, then exited his car and punched both men in the face. He was charged with battery, as well as violations of an individual’s civil rights under West Virginia Code Section 61-6-21(b), which makes it unlawful to injure a person because of that person’s “sex.” Though Butler was found guilty of battery, the lower court ruled he had not committed a civil rights violation under Section 61-6-21(b) because his assault on the men was not based on their “sex,” a term the court asserted was unambiguous and could not be expanded to include “sexual orientation.” The West Virginia Supreme Court upheld the ruling.

Sex v. Sexual Orientation

In reaching its decision, the Court explained that because use of the word “sex” in the statute was unambiguous, it should not be subject to interpretation and its plain meaning should be applied. Further, a word used in a statute is not deemed ambiguous merely because the parties in the case do not agree on its meaning.

The Court asserted that because the word “sex” was not defined in the statute, it was required to apply the “common, ordinary and accepted meaning.” In this case, it argued, “sex” and “sexual orientation” have different meanings. Referencing dictionaries to explain the difference, the Court explained that “sex” involves the physical structures such as genitalia and functions that separate males and females. By contrast, “sexual orientation” is about an individual’s sexuality or predisposition when it comes to sexual behavior and activity with other males or females.

Other States Have Included “Sexual Orientation” in Their Statutes

The Court went on to say that most of the states have enacted hate crime statutes, and there is an irrefutable distinction between “sex” and “sexual orientation” among the states. Six states, including West Virginia, use the term “sex” or “gender.” With respect to 20 of the states, the legislature used the term “sex” or “gender” in addition to the term “sexual orientation.” Six other states mention only “sexual orientation.” Some states use the terms “sexual orientation” in addition to “gender expression” or “gender identity.” Finally, certain states do not use any of these terms. Moreover, the Court pointed out that there have been prior court decisions on the matter involving states that use only the word “sex” in their hate crime statutes, and in these cases the courts did not define it to include or exclude “sexual orientation.”

West Virginia’s Legislature Has Indisputably Left Out “Sexual Orientation”

According to the Court’s analysis of the legislature’s intent, it is undeniable that the term “sexual orientation” has been purposefully left out of the state’s hate crime statute. Since the statute’s enactment in 1987, the legislature has failed to add the term “sexual orientation.” Thus, the Court asserted, it must recognize the legislature’s intent to not include “sexual orientation” in the statute.

Dissenting Justices: Majority’s Take on the Law is Wrong

Justice Workman and Justice Davis wrote a dissenting opinion, arguing the majority opinion showed a detrimental misunderstanding of the phrase “because of . . . sex” in the statute. The Court is required to look at the entire language of a statute, and in this case, the dissenting Justices assert, the victims were assaulted because of their sex. In a hate crime situation, it is the bias and motivation for the crime that are ultimately punished, and the victims were clearly attacked because they were not behaving in a manner their assailant perceived men should behave with other men.

Justices Workman and Davis supported their argument with a case that came under Title VII of the Civil Rights Act of 1964. There, a female manager was denied partnership at her accounting firm and told she should act and appear more feminine. The case came before the U.S. Supreme Court, which concluded the phrase “because of . . . sex” in the federal statute included mistreatment due to gender stereotypes. According to Justices Workman and Davis, the woman was discriminated against not just because she had the anatomical parts of a female, but because she did not conform and act in the manner she was expected to as a woman in a corporate setting. But for her sex, Justices Workman and Davis argue, the woman in the accounting firm would not have been discriminated against. Likewise, but for their sex, the two male victims in this case would not have been attacked by the defendant.

That Victims Suffered “No Injustice” Is Highly Questionable

The Court stated in its opinion that, despite the dismissal of the hate crime charges, there was no injustice because the two counts of battery against Butler were upheld. This remark is undoubtedly an oversimplification of the meaning of hate crimes and what justice means for its victims.