Thursday, May 11, 2017

WV Supreme Court: Anti-Gay Assaults Not Hate Crimes

2017 West Virginia Supreme Court of Appeals.


Earlier this week, the West Virginia Supreme Court of Appeals ruled that the state’s hate crime law does not cover anti-gay assaults or any crime committed on the basis of sexual orientation. 

The 3–2 decision is a huge setback for civil rights advocates’ efforts to persuade courts that laws prohibiting violence and discrimination on the basis of sex also protect LGBTQ people. The loss, however, is a narrow one—and the poorly reasoned majority opinion is unlikely to affect the growing consensus in the federal judiciary that anti-LGBTQ discrimination is always “because of sex.”

The Case in question:  West Virginia v. Butler In 2015, Steward Butler, a college football player, allegedly attacked two men for kissing in public after shouting homophobic slurs. Prosecutors charged Butler not only with battery but also with a hate crime. But West Virginia’s hate crime statute does not explicitly include sexual orientation, instead it bars violence “because of sex.” Prosecutors argued that Butler’s alleged attack fell under this prohibition because it was motivated by sex stereotyping, and because sex lay at the root of the brutality: Butler allegedly beat each man for intimately associating with a person of the same sex, and if either were different sex, he would not have assailed them.

Writing for the majority, Chief Justice Allen H. Loughry II reached his conclusion by citing several dictionary definitions and ignoring Supreme Court precedent interpreting sex discrimination to encompass “the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Loughry also noted that the legislature has repeatedly tried and failed to add “sexual orientation” to its hate crime statute. Its failure to add these words, Loughry asserted, indicates that the legislature did not intend to protect LGBTQ people from hate crimes.

Ray of hope? The ruling was a narrow one—and the poorly reasoned majority opinion is unlikely to affect the growing consensus in the federal judiciary that anti-LGBTQ discrimination is always “because of sex.” In fact Justive Margaret L Workman (along with Justice Robin Jean Davis) wrote  a forceful dissent which criticized Loughry for giving “the shortest shrift to real critical thinking.” The majority decision, Workman wrote, “is overly simplistic and constricted,” because “the absence of … those two magic words”—sexual orientation—“does not definitely resolve the question presented by this case.” In reality, Workman explained, “certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles. The perpetrators in such instances have drawn conclusions that the victim has contravened certain unspoken rules” regarding men and women. When he acts on those conclusions, “the bias-motivated crime” is committed, quite literally, “because of sex.” Workman elaborated:

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; 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.

What this means for West Virginia: Until the state legislature adds “sexual orientation” to the law, LGBTQ West Virginians will lack state-level protections against hate crimes.


More reporting here 

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