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.”
