West Virginia's hate crime law protects people from threats and violence because of their race, religion, or sex. Last week, the state's Supreme Court of Appeals ruled that the word sex in the hate crime statute does not include sexual orientation. The 3-2 decision in West Virginia v. Butler means that gay bashing is not a crime in West Virginia.

Here's what happened. In April, 2015, Steward Butler was charged with two counts of battery, and another two counts of violating West Virginia's hate crime statute, for allegedly shouting homophobic slurs and punching two men he saw kissing on a local street. Butler appealed the hate-crime indictments—hate crimes are classified as felonies—and West Virginia's highest court obligingly quashed them on the grounds that sexual orientation is not a protected category in the law. Butler still faces two counts on the lesser charge of battery, which is a misdemeanor.

West Virginia's criminal code bans attacks based on "race, color, religion, ancestry, national origin, political affiliation or sex." Since the law does not define sex, the word is presumed to have its plain and ordinary meaning. To determine that meaning, Chief Justice Allen Loughry looked up sex in several dictionaries and found they made no reference to 'sexual orientation,' which is treated as a separate word. 

According to Loughry, the New Oxford American Dictionary defines sex as,

either of the two main categories (male and female) into which humans . . . are divided on the basis of their reproductive functions; sexual intercourse.

Sexual orientation has its own entry in the NOAD:

a person's sexual identity in relation to the gender to which they are attracted; the fact of being heterosexual, homosexual, or bisexual.

Loughry finds that Black's Law Dictionary and Webster's New World Dictionary also treat these terms separately. And, since many state and federal hate crime statutes also create separate categories for sex and sexual orientation, he concludes that West Virginia left sexual orientation out of its law on purpose. In addition, Loughry points out that West Virginia legislators have failed 26 times to add sexual orientation as a protected category. That effort to change the law is ongoing: HB 2748, introduced in March, 2017, would amend the hate crime statute to read,

All persons within the boundaries of the State of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, or sex gender identity, or sexual orientation. [The word crossed out is to be deleted from the law; words underlined are added]

Even if the legislature adopts this revision, which drops 'sex' and adds protection for homosexual and transgender persons, it confirms for Loughry his understanding that sexual orientation has nothing to do with sex.

The two justices who disagreed with the majority reserved the right to publish their dissent later. When they do, they should consider that, for most people today, the plain and ordinary meaning of sex in the specific context of a hate crime law—which is what West Virginia v. Butler is all about—always includes 'sexual orientation.'

Here's why. The fact that these two terms are defined separately in dictionaries doesn't mean they’re not connected etymologically or semantically. It simply indicates that each is important enough to have its own entry. After all, the dictionary's job is to describe language as we use it, not to tell judges how to read the law.

As for relating sex and sexual orientation, the Oxford English Dictionary comes the closest to connecting the dots for the West Virginia courts. The OED's definition of sex has a subhead for the phrase sex-hate, illustrating its meaning with a cite from a 1997 article about a particularly heinous attack on a gay couple. In that article, the BAFTA-award-winning writer Kevin Toolis writes about a pack of young toughs, fueled by drugs, alcohol, and hatred, who stomped one of their victims to death and left the other permanently disabled. This expanded passage puts the brief OED citation, the words that are underlined, into its fuller gay-bashing context:

Three young men entered Central Park in Plymouth on a hunting expedition. Armed with knives, their fists and boots, the men were hunting queers. . . . Their 'fun night out' ended with one of the worst sex-hate crimes in Britain since the Yorkshire Ripper killings of the late Seventies. [Kevin Toolis, "Licence to hate." Guardian, Aug. 30, 1997, p. T36; emphasis added]

The "Yorkshire Ripper" referred to in the passage was Peter Sutcliffe, who murdered thirteen women in the 1970s. For the OED, sex-hate clearly refers to crimes based on a victim’s sex and to crimes based on their sexual orientation. As words and as phenomena, both sex-hate and sexual orientation are clearly subcategories of sex. West Virginia needs to acknowledge this reality.

Instead of looking at dictionaries, the West Virginia court should consider the plain and ordinary meaning of sex by considering how law enforcement treats sex and sexual orientation as motivators for hate crimes. The most recent FBI hate crime data shows that race accounts for about 60% of all reported hate crimes, while religion and sex account for 20% each. The data also reveals that attacks based on the victim's sexual orientation, along with a small percentage based on gender identity, account for well over 99% of all hate crimes involving sex. "Gender bias" crimes—those based on a victim's biological sex—account for only 0.4% (rape, another sex crime, is prosecuted under rape laws, which tend to carry much harsher penalties than hate crime).

If just about all sex-related hate crimes are based on the victim's sexual orientation or gender identity, then Chief Justice Loughry is wrong: the plain and ordinary meaning of sex does indeed include the subcategories 'sexual orientation' and 'gender identity' and so, in the context of a hate crime law, sex is either a virtually empty category with no real meaning in the law, or it must refer with very few exceptions to crimes based on the victim's sexual orientation or their gender identity.

Loughry's decision to ignore this evidence reflects West Virginia's official position on hate crime. The latest numbers from the FBI show West Virginia reporting no hate crimes at all for 2015. Hate crimes just don't happen there, ever. No crimes based on race. No crimes based on religion. No crimes based on sex. The hate crime law is full of empty categories. Charging Steward Butler with a sexual-orientation hate crime would be an admission that hate crimes do occur in West Virginia, and that would ruin the state's perfect record.