The West Virginia Supreme Court of Appeals has ruled that the state's hate crime law does not apply to attacks on gay people, court documents show.
The 3-2 decision from the State of West Virginia vs. Steward Butler means that Butler, a Marshall University football player, will not be charged with a hate crime after he allegedly assaulted two gay men who were kissing in the street in April 2015.
Butler is alleged to have used homophobic slurs against the two men before getting out of his car and punching them in the face, ABC News reports. He was indicted in May 2015 and charged with battery and violations of civil rights laws. Butler contested the indictment, questioning whether his actions were in fact a violation of those laws.
According to West Virginia law, hate crimes cover attacks against individuals based on their race, color, religion, ancestry, national origin, political affiliation or sex. It was the last category that came under scrutiny in this case, with prosecuting attorneys arguing that "sex" includes a person's sexual orientation.
The court found the opposite to be true.
"A review of similar laws from other states demonstrated that 'there are two distinct categories of potential discrimination: discrimination based on sex and discrimination based on sexual orientation,'" the decision says. "West Virginia legislature could have included sexual orientation as an area of protection … [as] numerous other states have done."
According to Chief Justice Allen Loughry, the court is "bound to apply the law as it stands" and determined that it "cannot expand the word ‘sex’ to include ‘sexual orientation.'"
"It is not for this Court arbitrarily to read into a statute that which it does not say," he added. "Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted."
The civil rights violation charges against Butler will now be dropped, although he still faces the battery charges.
Greg Nevins of the Lambda Legal Defense and Education Fund indicated that, from his point of view, the victims were indeed targeted because of their sex.
"Put it this way," he told The New York Times. "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. We have to focus on would this crime have happened if the victims were a different sex."
The same point was made by Justice Margaret L. Workman and Justice Robin Jean Davis, the two dissenting judges in the ruling, who said the decision was "overly simplistic and constricted."
"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?" Workman wrote, according to ABC News. "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."
In a statement, GLAAD President and CEO Sarah Kate Ellis described the court's ruling as "a step in the wrong direction."
"At a time when anti-LGBTQ hate violence is on the rise, this ruling reiterates the need to advocate for LGBTQ-inclusive hate-crime laws in all states across the nation," she said.
ABC News reports that, since 1987, there have been 26 attempts to amend the West Virginia hate crime law in order to include sexual orientation. None have been successful.