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Are Anti-Gay Assaults Hate Crimes?

By Christopher Coble, Esq. on May 25, 2017 | Last updated on March 21, 2019

Nearly every state and the federal government has hate crime statutes that can increase penalties for crimes targeting specific individuals based on immutable characteristics like race, religion, or national origin. But the wording of hate crime laws, in terms what they prohibit and who they protect, can vary from jurisdiction to jurisdiction.

And different courts might interpret those statutes differently. Just this month, the West Virginia Supreme Court ruled that the state's hate crime law does not cover anti-gay assaults. The ruling runs contrary to what most federal and state courts have said on the matter, and leaves many wondering whether states and the federal government consider anti-gay attacks hate crimes.

Let's Talk About Sex, Loughry

West Virginia's statute prohibits civil rights violations "because of ... sex." And while many state courts, most federal courts, and even the U.S. Supreme Court have interpreted "sex" as including sexual orientation or "the entire spectrum of disparate treatment of men and women resulting from sex stereotypes," the West Virginia Supreme Court held that "sex" under state law was limited to "being male or female, and does not include 'sexual orientation.'"

It's not the most convincing argument. The hate crime charge at issue involved a male football player assaulting two men that he saw kissing. The attack certainly happened because one of the victims was male -- had either been female, their attacker would presumably not have cared. However, Chief Justice Allen H. Loughry II, writing for the majority, cited the many times state legislators tried, and failed, to amend the law to include LGBT protections as evidence that sex in West Virginia doesn't include sexual orientation or gender stereotypes.

Feds and States, Sex and Hate

At the federal level, hate crime laws were updated in 2009 to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. The majority of states, including New York and Texas, and even cities like Philadelphia, also include sexual orientation or gender identity as a protected class.

And, while the trend in legislation and statutory interpretation is to include hate crime protections for LGBT citizens, those statutes are not all alike and courts are not reading them all the same. For more information on hate crimes where you live, contact a local criminal attorney.

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