# WV Supremes rule 3-2 that "sex" is not "sexual orientation" **URL:** \ **Category:** Great Debates\ **Created:** [May 11, 2017, 8:44pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392 "2017-05-11T20:44:50Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 11, 2017, 8:44pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/1 "2017-05-11T20:44:50Z")
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](http://www.courtswv.gov/supreme-court/docs/spring2017/16-0543.pdf) ---
**Author:** ![Chisquirrel](https://avatars.discourse-cdn.com/v4/letter/c/6bbea6/32.png) [@Chisquirrel](https://boards.straightdope.com/u/Chisquirrel)\ **Post date:** [May 11, 2017, 9:00pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/2 "2017-05-11T21:00:45Z")
Is it safe to assume said dude would not have punched a woman who was kissing a man? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 11, 2017, 9:21pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/3 "2017-05-11T21:21:57Z")
> [@Chisquirrel](#): > > 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. ---
**Author:** ![TheSeaOtter](https://avatars.discourse-cdn.com/v4/letter/t/ed655f/32.png) [@TheSeaOtter](https://boards.straightdope.com/u/TheSeaOtter)\ **Post date:** [May 11, 2017, 9:23pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/4 "2017-05-11T21:23:21Z")
> [@Chisquirrel](#): > > Is it safe to assume said dude would not have punched a woman who was kissing a man? From the court decision: > [@](#): > > the defendant observed two men, Casey Williams and Zackery Johnson, exchange a kiss on the sidewalk. The defendant allegedly voiced homophobic slurs toward Williams and Johnson, exited the vehicle, and struck both Williams and Johnson in the face with his fist, knocking Williams to the ground. So I’m going with yes on that. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 11, 2017, 9:30pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/5 "2017-05-11T21:30:39Z")
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. ---
**Author:** ![TheSeaOtter](https://avatars.discourse-cdn.com/v4/letter/t/ed655f/32.png) [@TheSeaOtter](https://boards.straightdope.com/u/TheSeaOtter)\ **Post date:** [May 11, 2017, 9:36pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/6 "2017-05-11T21:36:04Z")
> [@Little\_Nemo](#): > > 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. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 11, 2017, 9:44pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/7 "2017-05-11T21:44:52Z")
> [@UltraVires](#): > > 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](http://www.courtswv.gov/supreme-court/docs/spring2017/16-0543.pdf) 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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 11, 2017, 9:48pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/8 "2017-05-11T21:48:01Z")
> [@Bone](#): > > 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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 11, 2017, 9:56pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/9 "2017-05-11T21:56:34Z")
This one: [http://www.courtswv.gov/supreme-court/docs/fall2016/15-0289.pdf](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](http://www.courtswv.gov/supreme-court/docs/fall2016/15-0854.pdf) ---
**Author:** ![Roderick\_Femm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roderick_femm/32/14875_2.png) [@Roderick\_Femm](https://boards.straightdope.com/u/Roderick_Femm)\ **Post date:** [May 11, 2017, 9:57pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/10 "2017-05-11T21:57:06Z")
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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 11, 2017, 10:00pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/11 "2017-05-11T22:00:36Z")
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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 11, 2017, 10:02pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/12 "2017-05-11T22:02:44Z")
> [@Roderick\_Femm](#): > > 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. Not really. Butler is now only subject to two misdemeanor battery prosecutions. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 11, 2017, 10:07pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/13 "2017-05-11T22:07:45Z")
> [@TheSeaOtter](#): > > 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. I’m not sure what you’re saying here. I’m saying the plain reading of the word sex does encompass gender. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 11, 2017, 10:10pm UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/14 "2017-05-11T22:10:53Z")
> [@Roderick\_Femm](#): > > 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. 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. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [May 12, 2017, 12:07am UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/15 "2017-05-12T00:07:20Z")
> [@UltraVires](#): > > 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. Is the KKK lynching a black guy discriminatory towards black people in general, or just the “uppity” ones? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 12, 2017, 1:08am UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/16 "2017-05-12T01:08:10Z")
> [@Miller](#): > > 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. ☹ ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [May 12, 2017, 1:14am UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/17 "2017-05-12T01:14:39Z")
You got an argument to make, “squire?” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2017, 1:32am UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/18 "2017-05-12T01:32:14Z")
> [@UltraVires](#): > > 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 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 12, 2017, 2:05am UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/19 "2017-05-12T02:05:32Z")
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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 12, 2017, 2:06am UTC](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392/20 "2017-05-12T02:06:35Z")
> [@Chisquirrel](#): > > Is it safe to assume said dude would not have punched a woman who was kissing a man? Or a woman kissing a woman. [Next page](https://boards.straightdope.com/t/wv-supremes-rule-3-2-that-sex-is-not-sexual-orientation/786392.md?page=2)