When A Hate Crime Isn’t A Hate Crime

It is when the state Supreme Courts says it’s not.

West Virginia Supreme Court Rules Anti-Gay Assaults Are Not Hate Crimes
Slate
By Mark Joseph Stern
May 10, 2017

On Tuesday, the West Virginia Supreme Court of Appeals ruled that the state’s hate crime law does not cover anti-gay assaults or any crime committed on the basis of sexual orientation. Its 3–2 decision marks a setback for civil rights advocates’ efforts to persuade courts that laws prohibiting violence and discrimination on the basis of sex also protect LGBTQ people. The loss, however, is a narrow one—and the poorly reasoned majority opinion is unlikely to affect the growing consensus in the federal judiciary that anti-LGBTQ discrimination is always “because of sex.”

Tuesday’s decision in West Virginia v. Butler emerged from a disturbing case of anti-gay bias. In 2015, Steward Butler, a college football player, allegedly attacked two men for kissing in public after shouting homophobic slurs. Prosecutors charged Butler not only with battery but also with a hate crime. West Virginia’s hate crime statute does not explicitly include sexual orientation, but it does bar violence “because of sex.” Prosecutors argued that Butler’s alleged attack fell under this prohibition because it was motivated by sex stereotyping, and because sex lay at the root of the brutality: Butler allegedly beat each man for intimately associating with a person of the same sex, and if either were different sex, he would not have assailed them.

This is 180 degree thinking from the U.S. Supreme Court which in the Price Waterhouse case ruled that sex discrimination also includes “sex stereotyping.”

One judge had this to say,

In a forceful dissent, Justice Margaret L. Workman, joined by Justice Robin Jean Davis, criticized Loughry for giving “the shortest shrift to real critical thinking.” The majority decision, Workman wrote, “is overly simplistic and constricted,” because “the absence of … those two magic words”—sexual orientation—“does not definitely resolve the question presented by this case.” In reality, Workman explained, “certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles. The perpetrators in such instances have drawn conclusions that the victim has contravened certain unspoken rules” regarding men and women. When he acts on those conclusions, “the bias-motivated crime” is committed, quite literally, “because of sex.” Workman elaborated:

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? 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 an elegant analogy, Workman compared this sex stereotyping to race stereotyping, which is already acknowledged to be form of race discrimination:

If a Caucasian man is fired because he is married to an African-American woman, has he been discriminated against because of his race? Yes, but not simply because of the hue of his skin; rather, the act was committed because he was perceived to be behaving outside the social expectation of how a Caucasian man should behave with an African American woman. But for his race, he would not have been fired.

So what are the options for the target of the hate and violence?

Well there is the federal Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act that makes it a federal crime for crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability.

So this clearly falls under the act, but somehow I don’t think that the U.S. Attorney General Jeff Sessions is going to investigate the attacks.

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Today I am at the Newington’s Senior and Disabled Center for the Moveable Senior Center forwarded by a meeting of the LGBT Aging Advocacy Coalition. So it is going to be a long day.