— -- In a 3-2 decision Tuesday, the West Virginia Supreme Court of Appeals ruled that anti-gay assaults are not protected under the state's hate crime law, according to court documents obtained by ABC News.
The decision emerged from the West Virginia v. Steward Butler case, which involves an April 2015 incident during which Butler allegedly, while stopped in his car at an intersection, directed anti-gay slurs at two men he saw kissing on the sidewalk, then got out of his car and struck both victims in the face with his fist, according to court documents.
On May 21, 2015, a Cabell County grand jury issued an indictment against Butler, charging him with battery and violations of an individual's civil rights under West Virginia law. Butler challenged those indictments and the applicability of the law to his actions.
According to the court, under West Virginia law it is unlawful to threaten, injure, intimidate or oppress any individual because of race, color, religion, ancestry, national origin, political affiliation or sex. However, West Virginia's Supreme Court agreed that the word "sex" has ambiguous meaning and it is unclear if the law protects individuals on the basis of sexual orientation.
"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 court decision states. “West Virginia legislature could have included sexual orientation as an area of protection ... [as] numerous other states have done."
Currently, West Virginia and five other states have hate crime protection laws that list either "sex" or "gender," 20 states list either "sex" or "gender" in addition to "sexual orientation" and six states list only "sexual orientation."
Citing Black's Law Dictionary definition of sex as meaning "the sum of the peculiarities of structure and function that distinguish a male from a female organism;gender" and the dictionary's definition of sexual orientation as "a person’s predisposition or inclination toward sexual activity or behavior with other males or females," the court ruled that they could not make claims that the law included both.
Chief Justice Allen Loughry said that the court was "bound to apply the law as it stands" and that it "cannot expand the word 'sex' to include 'sexual orientation.'" As a result, the court ruled that Butler's battery charges would remain but charges for violating an individual's civil rights would be dropped.
"Tuesday's ruling by the West Virginia Supreme Court was a step in the wrong direction," GLAAD’s President and CEO Sarah Kate Ellis told ABC News in a statement. "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.”
Since 1987, there have been at least 26 attempts to amend the statute in West Virginia to include sexual orientation, but all those attempts failed.
Justice Loughry stated in court documents that it is important to remember that “it is not for this court arbitrarily to read into a statute that which it does not say. 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."
However, in dissent, Justice Margaret L. Workman and Justice Robin Jean Davis took issue with the opinion delivered by Loughry, saying it 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 asked in her dissenting opinion. "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."