Quick version of the facts. Some dude walks up and punches a man because he sees him kissing another man. The State prosecutes him under a hate crimes statute that prevents discrimination based on “sex.” This Justice has ruled against me twice prior, but he is right on this:
http://www.courtswv.gov/supreme-court/docs/spring2017/16-0543.pdf
Is it safe to assume said dude would not have punched a woman who was kissing a man?
Yes, it would be a safe assumption. But was his act discriminatory against men in general, or only because that particular man had a sexual orientation he did not like…a category not protected by statute.
From the court decision:
So I’m going with yes on that.
I agree with the OP. While a hate crime law ideally should include protection for people victimized because of their sexual orientation, West Virginia Code § 61-6-21(b) does not. It protects people against crimes “committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.” I agree with the judge that in this context the plain reading of sex is gender not sexual orientation.
Are you sure you wanted to use the word ‘gender’ here? Arguing that sex does not encompass orientation is plausible. Arguing the same about gender is going to go poorly.
Do you mean to say that this judge has personally ruled against you in a case you argued in his court? Just curious because that’s kinda neat.
Yes. TWICE.
This one:
http://www.courtswv.gov/supreme-court/docs/fall2016/15-0289.pdf
and this one:
http://www.courtswv.gov/supreme-court/docs/fall2016/15-0854.pdf
I’m generally not in favor of hate crime laws. The assailant is already subject to several felony charges, so a hate crime addition should be superfluous. However, in these kinds of cases I always fear a slap on the wrist punishment (like time served and public service) from a sympathetic judge. I’m not sure how to reconcile these two views.
The Payne case is pending cert in the U.S. Supreme Court. The local law school clinic took it from me (after I called them and pressed for it 
) They’ve got a hard hitting appellate firm in D.C. doing the official pleadings. Probably a 10% chance of being granted.
Not really. Butler is now only subject to two misdemeanor battery prosecutions.
I’m not sure what you’re saying here. I’m saying the plain reading of the word sex does encompass gender.
The logic I see is that some people are disproportionately threatened by crimes because they belong to some group that criminals target. So this additional layer of threat justifies an additional layer of legal protection.
Is the KKK lynching a black guy discriminatory towards black people in general, or just the “uppity” ones?
That’s not even remotely apposite, as I believe you should know. 
You got an argument to make, “squire?”
Not to Monday morning quarterback, but (in Payne) there was no post-verdict motion for a new trial? In Virginia we have the dread Rule 5A:18, which basically says if you don’t do that you’re stuck arguing plain error on appeal.
Yup. A criminal statute has to be given the construction which is most favorable to the accused. So yeah I would say they got it right.
Or a woman kissing a woman.