Anti-Gay Attacks Not Covered by West Virginia Hate Crime Law, Court Rules

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The West Virginia Supreme Court of Appeals ruled this week that anti-gay attacks cannot be prosecuted under the state’s hate crime law, a decision that activists said diverged from recent outcomes in gay and transgender rights cases. The ruling clears the way for a college athlete accused of assaulting two gay men to be tried on lesser charges.

The case hinged on whether attacks based on sexual orientation could fall under a hate crime law that does not explicitly mention sexual orientation. Prosecuting lawyers in Cabell County, where the attack took place, argued that “sex,” which the law lists as a protected category, includes crimes committed on the basis of sexual orientation.

But the court was not convinced. In a 3-to-2 ruling handed down on Tuesday, it found that “the word ‘sex’ in West Virginia Code § 61-6-21(b) is unambiguous and clearly imparts being male or female, and does not include ‘sexual orientation,’” according to a majority opinion written by Chief Justice Allen H. Loughry II.

The court’s ruling was celebrated by West Virginia’s attorney general, Patrick Morrisey, who did not side with the state, which argued that sexual orientation was a protected category under the hate crime law. In a statement, he called the attack on the two men “deeply disturbing and heinous” but said “such conduct does not give the judicial system a license to rewrite state law.”

That consideration appeared to weigh heavily on the court as well. In his opinion, Justice Loughry said the ruling was based in part on the State Legislature’s history of resistance to adding sexual orientation to its hate crime law, a change that has been proposed and rejected 26 times since 1993. West Virginia is one of only six states with a hate crime law that includes sex in its protections but not sexual orientation or gender identity.

The attack at the heart of the West Virginia case happened in April 2015, when prosecutors said Steward Butler, then a running back with the Marshall University football team, attacked two men, Casey Williams and Zackary Johnson, after he saw them kissing in public. Prosecutors said Mr. Butler shouted homophobic slurs at them from his car, then got out and punched them in their faces, knocking one of them to the ground.

Mr. Butler was kicked off the football team and charged with two misdemeanor counts of battery and two felony hate crime counts. The battery charges have not yet gone to trial. Law enforcement officials said the ruling on Tuesday would send his case back to a lower court where he will now face only the misdemeanor charges.

Phone calls to the office of Mr. Butler’s lawyer, Raymond Nolan, went unanswered on Thursday.

Greg Nevins, a lawyer at the Lambda Legal Defense and Education Fund, which filed an amicus brief in the case, said the plaintiffs argued that the men were attacked for violating a gender norm or stereotype.

“Put it this way: If you congratulate a man because he marries a woman and then you fire a woman because she marries a woman, that is discrimination on the basis of sex,” Mr. Nevins said. “We have to focus on would this crime have happened if the victims were a different sex.”

Mr. Nevins said this was the first time such an argument had been made in a state-level hate crime case. Federal hate crime law explicitly protects against crimes committed on the basis of sexual orientation and gender identity.

In recent years, gay and transgender advocacy groups have won a string of federal anti-discrimination cases in areas like employment, housing and education by arguing that federal laws that forbid sex discrimination, particularly Title VII and Title IX, also cover discrimination on the basis of sexual orientation and gender identity.

But that approach has not always been effective. In March, the United States Court of Appeals for the 11th Circuit ruled that Jameka Evans, a lesbian, could not sue her employer for anti-gay discrimination under Title VII of the Civil Rights Act of 1964.

Attacks on lesbian, gay, bisexual and transgender people make up roughly 20 percent of bias attacks and harassment reported to law enforcement agencies, according to statistics compiled by the F.B.I. in 2015. Those episodes included assault, intimidation, vandalism, murder and rape.

Robin Maril, the associate legal director of the Human Rights Campaign, an L.G.B.T. advocacy group, said the West Virginia ruling was not consistent with “the broad legal trajectory we are seeing in the courts” toward including both sexuality and gender identity under legal protections based on sex, especially in the context of anti-discrimination law.

“It’s very, very troubling with the levels of violence against the L.G.B.T. community to see the West Virginia Supreme Court foreclose this option for victims and prosecutors,” she said.