In State of West Virginia v. Steward Butler, the Supreme Court of Appeals of West Virginia determined that “sex” as used in West Virginia Code § 61-6-21(b), a statute that criminalizes violence, threats of violence, and other pernicious conduct on the basis of sex, did not include “sexual orientation.” Based on this determination, Chief Justice Allen H. Loughry II, writing for the 3-2 majority, affirmed the lower court’s dismissal of two charges alleging that the defendant violated West Virginia Code § 61-6-21(b) by assaulting two men based on their sexual orientation.
On April 5, 2015, the defendant witnessed two men kissing on a street in Huntington, West Virginia. After witnessing the kiss, the defendant allegedly directed homophobic slurs toward the men, struck both men, and knocked one of the men to the ground. Following the assault, a grand jury returned a four-count indictment against the defendant. Two of the charges alleged that the defendant violated West Virginia Code § 61-6-21(b) because he assaulted the men based on their sexual orientation, and the remaining two charges alleged that the defendant committed battery.
The defendant challenged the applicability of West Virginia Code § 61-6-21(b), arguing that the statute as written criminalized conduct based on a person’s sex—not a person’s sexual orientation. The lower court certified a question to the Supreme Court of Appeals of West Virginia, seeking to clarify whether the term “sex” in West Virginia Code § 61-6-21(b) included sexual orientation. The Court refused to docket the certified question, and the case returned to the lower court. Following briefing, the lower court determined that “sex” as used in West Virginia Code § 61-6-21(b) did not encompass sexual orientation because the West Virginia legislature, unlike a number of other state legislatures, did not specifically prohibit conduct based on an individual’s sexual orientation. The state appealed, asserting that the lower court erred by (1) determining that sex as used in § 61-6-21(b) did not include sexual orientation and (2) ruling on an issue that the Supreme Court of Appeals of West Virginia for which the Court refused to docket a certified question earlier in the case.
In an interesting twist, West Virginia Attorney General Patrick Morrisey, through the state’s Solicitor General Elbert Lin, whose office routinely handles appeals before this Court on behalf of local prosecutors, filed an amicus curiae brief supporting the defendant’s position that the statute does not apply to sexual orientation.
As to the first issue, the state contended that sex could reasonably be defined as including sexual orientation and relied on federal Title VII precedent that interpreted the phrase “because of sex” to include sexual orientation. In response, the defendant argued that the statute unambiguously stated sex and not sexual orientation, that the common usage of the term sex did not include sexual orientation, and that a number of other state civil rights statutes specifically used the term sexual orientation while West Virginia’s civil rights statute did not.
The Court ultimately agreed with the defendant. First, it noted that “[t]he Legislature has power to create and define crimes.” Whenever the Legislature wrote West Virginia Code § 61-6-21(b) it used the term “sex”—not sexual orientation. After wrangling several dictionaries, the court determined that the plain meaning of the term sex was “being male or female” and did not include sexual orientation. The court further supported the notion that the definition of sex did not include sexual orientation by noting that sex and sexual orientation were treated as distinct protected categories in civil rights statutes throughout the states.
In addition to the plain language of § 61-6-21(b), the Court also determined that the legislative history of the statute supported a reading of sex that excluded sexual orientation. Specifically, the Court relied on the Legislature’s failure on twenty-six occasions to adopt amendments to the statute to include “sexual orientation”. Based on the Legislature’s repeated refusal to amend the statute, the Court determined, “[T]hese unsuccessful legislative efforts are not only indicative of intent, but they are germane to the Legislature's right to define crimes. In this regard, the Legislature has chosen—repeatedly—not to amend West Virginia Code § 61-6-21(b) so as to include any additional characteristics that trigger criminal responsibility under the statute.”
Although the state argued that the reading ultimately adopted by the court would lead to absurd results and fundamental injustice, the Court stated that that was not the case. First, the Court noted that absurd results did not follow from a reading of sex that did not include sexual orientation because it was simply effecting the Legislature’s intent that sex not include sexual orientation. Next, the Court determined that fundamental injustice did not flow from its interpretation of the statute because the defendant was still potentially liable for the remaining battery charges.
The Court then reiterated the central tenet upon which it based its decision: “It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” Although the Court’s own rules prohibited discrimination on the basis of sexual orientation, the Court repeatedly noted that the Legislature—not the Court—was in charge of creating and delineating crimes. Based on that tenet, the Court upheld the trial court’s determination that sex as defined in West Virginia Code § 61-6-21(b) did not include sexual orientation.
The Court also determined that the trial court did not err when it ruled on an issue for which the Court earlier refused to docket a certified question. It ruled that the Court’s refusal to docket a certified question did not constitute a ruling on the issue and that lower courts may appropriately rule on issues that the Court refused to docket. Therefore, the Court also refused to overturn the lower court on the certified question issue.
Writing in dissent, Justice Margaret Workman, who was joined by Justice Robin Davis, repeatedly opined that the phrase “because of . . . sex” included sexual orientation. In support of her opinion, she argued that sexual orientation implicates sex because “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.” She determined that the majority concluded its analysis of the plain language too early and that the real issue in the case was not whether the statute included the term “sexual orientation” but whether the actions occurred because of the victim’s sex. Because the victims in this case were attacked for acting in a way that many might perceive as outside the societal norms for males, Justice Workman determined that the actions at issue took place because of the victim’s sex.
At first glance, the result of the Butler decision appears controversial; however, the tenets in which it is grounded are not—or at least should not be—controversial. In Butler, the Court recognized that its goal was to interpret and apply the law as written by the Legislature. Although society or the Court might disagree with the results of that application, to do more would upset separation of powers.
 Cited as State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017).
 State v. Butler, 239 W. Va. 168, 799 S.E.2d 718, 723 (2017) (quoting Syl. Pt. 2, in part, State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (1910)).
 Id. at 726.
 Id. at 727 (quoting Syl. Pt. 11, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21 (2013)).
 Id. at 732.