West Virginia LGBT Laws

Consensual sex between same-sex couples is lawful at sixteen (16) years [L1.1]

West Virginia Code, Chapter 61. Crimes and their punishment, Article 8B. Sexual Offences

§61–8B–5. Sexual assault in the third degree [L1.1].

(a) A person is guilty of sexual assault in the third degree when:

(1) The person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or

(2) The person, being sixteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than sixteen years old and who is at least four years younger than the defendant and is not married to the defendant.

(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one year nor more than five years, or fined not more than ten thousand dollars and imprisoned in a state correctional facility not less than one year nor more than five years.

Under West Virginia law, single individuals of any sexual orientation may adopt, while laws on joint same-sex couple adoption and same-sex second-parent adoption are unclear [R2.2].

On 05 June 2009, the Supreme Court ruled in favor of a lesbian couple seeking to retain custody of a foster child [R2.2].

In June 2005, Justice Robin Davis of the Supreme Court awarded custody of a five year old boy to his deceased mother’s lesbian partner, stating that a ‘psychological parent’ could be a biological, adoptive, step, or foster parent, as long as the parental relationship began with the consent of the legal parent or guardian [R2.1].

No municipalities are known to offer domestic partner benefits.

On 16 February 2012, Delegate John Doyle introduced HB 4569 the “West Virginia Civil Union Act” that would give gay and lesbian couples the same legal protections as heterosexual married couples [R1.1]. The Bill has been referred to the Committee on the Judiciary then Finance.

In March 2011, it was reported that the House of Delegates was the primary obstacle to passing stalled legislation against discrimination based on sexual orientation in employment and housing. Bills have passed the Senate twice since 2008 [R1.1].

On 09 February 2015, the Town Council of Thurmond, population five, voted unanimously to ban discrimination based on sexual orientation or gender identity in employment, housing, and public accommodations [R2.2].

On 23 December 2013, the Huntington City Council voted 11-0 to amend the Fairness Ordinance, prohibiting discrimination on the grounds of sexual orientation and veteran status, such as in denying employment [R2.1].

On 16 February 2000, US District Court Judge Joseph R. Goodwin reversed a decision of labour Arbitrator Merle Hart who had stated that if the suspended worker, James Chapman, “thought that his supervisor was ‘a queer,’ he would grant Chapman’s grievance on that basis alone. “If Chapman thought [his supervisor] was ‘a queer,’ his insubordinate conduct could be explained” [R2.1].

State hate crime law protects people from violence, intimidation or threats based on race, color, religion, ancestry, national origin, political affiliation or sex [R1.1] but not sexual orientation or gender [L1.2].

In 2000, a bill died in the House Judiciary Committee because of an 11–-11 tie. In 2001, the bill passed the Senate 20–12, but got stalled again in the House Judiciary Committee [R1.1].

In November 2001, a bill to go before the Charleston City Council would add sexual orientation and mental or physical disability to the hate crimes list [R1.1].

Morgantown reportedly had included sexual orientation and disability categories in other ordinances, such as those dealing with fair housing and fair employment [R1.1].

On 29 August 2018, a US District Court, Southern District of West Virginia jury of 10 men and two women acquitted a Charleston man John P Taylor IV of violating the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. Taylor was accused of assaulting a woman at a bar last year, in part, because she is a lesbian [R3.7].

On 09 May 2017, Chief Justice Allen H Loughry in the Supreme Court of Appeals ruled that the state’s hate crime protections do not extend to anti-LGBTQ attacks finding that the word ”sex” in the Virginia Code § 61-6-21(b) was plain and unambiguous and could not be expanded to include ”sexual orientation” [C3.6], [R3.5].

On 13 May 2016, Cabell County Circuit Court Judge Paul Farrell ruled that West Virginia law doesn’t consider violence or threats of violence based solely on a victim’s sexual orientation to be a hate crime [C3.4], [R3.3].

On 12 February 2016, the State Supreme Court declined to docket the Circuit Court certified question (3-2) ”Whether the provisions of West Virginia Code § 61-6-21 embodies a protection of an individual’s civil rights if the violative act is based solely upon said individual’s sexual orientation” [C3.2].

On 29 March 1999, Kanawha Circuit Judge Jim Stucky sentenced Robert Bowers III to a 60-year prison term saying he wasn’t buying the argument that Bowers was trying to protect himself from the victim’s sexual advances [R3.1].

In 1976, consensual sex between same-sex couples was decriminalised [R1.2].

West Virginia Code, Chapter 61 Crimes and their punishment

Article 8. Crimes against chastity, morality and decency

§ 61–8–4. Lewd and lascivious cohabitation and conduct; penalty; when persons presumed to be unmarried [L1.1].

If any persons, not married to each other, lewdly and lasciviously associate and cohabit together, or, whether married or not, be guilty of open or gross lewdness and lasciviousness, they shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than fifty dollars, and may, in the discretion of the court, be imprisoned not exceeding six months, and, upon a repetition of the offense, they shall, upon conviction, be confined in jail not less than six nor more than twelve months. In prosecutions for adultery and fornication, and for lewdly and lasciviously cohabiting together, the persons named in the indictment shall be presumed to be unmarried persons in the absence of proof to the contrary [L1.1].

West Virginia Code, Chapter 48. Domestic Relations, Article 2. Marriages

§ 48–2–104. Contents of the application for a marriage license [L1.4]

(a) […]

(b) […]

(c) Every application for a marriage license must contain the following statement: “Marriage is designed to be a loving and lifelong union between a woman and a man [L1.5].

§ 48–2–603. Certain acts, records, and proceedings not to be given effect in this state [L1.4].

A public act, record or judicial proceeding of any other state, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state, territory, possession, or tribe, or a right or claim arising from such relationship, shall not be given effect by this state [L1.3].

On 09 October 2014, Attorney General Patrick­ Morrisey (R) said he will “respect” the US Supreme Court’s decision earlier this week not to hear appeals on lower-court decisions that overturned bans in other states including one from the US Court of Appeals for the 4th Circuit, which ruled in a Virginia case but whose jurisdiction includes West Virginia, and will seek to end all litigation surrounding the state’s ban on same-sex marriage, effectively clearing a path for gay and lesbian couples to get married [R1.3].

On 23 February 2010, Democrats in the House of Delegates swiftly shot down Republican attempts to advance a constitutional ban on same-sex marriage [R1.2].

In 2000, at the instance of fundamentalist preachers, the West Virginia Legislature prohibited same-sex marriage, and then-Gov. Cecil Underwood signed the bill into law [R1.1].

In 1999, an attempt to prohibit marriages between same-sex couples failed, as had three previous attempts.

On 10 December 2018, it was reported that the West Virginia Judicial Investigation Commission issued a warning to Mineral Circuit Judge Lynn Nelson in Northern West Virginia for not performing same-sex marriages in his courtroom. The commission did not charge Judge Nelson with any ethical violations of the Judicial Code of Conduct [D2.17], [R2.16].

On 30 August 2017, Gilmer County agreed to pay $10,000 in damages, in a settlement recognizing the harms suffered, and apologized to Samantha Brookover and Amanda Abramovich who went to the Gilmer County courthouse to apply for a marriage license, which they were legally entitled to receive. Although they received that marriage license, they were disrespected and disparaged by staff at the County Clerk’s Office because they are a same-sex couple [C2.15], [R2.14].

On 07 November 2014, Chief Judge Robert C Chambers in the US District Court denied the State’s motion for continuance and granted the Plaintiff’s motion for summary judgment in the same-sex marriage case Casie Jo McGee and Sarah Elizabeth Adkins, et al., v. Karen S Cole, et al. [C2.13], [R2.12].

On 07 October 2014, U.S. District Judge Robert C. Chambers in Huntington Federal Court lifted the stay in McGee v. Cole which allows the case to move forward [R2.11].

On 06 October 2014, the US Court of Appeals for the Fourth Circuit issued its mandate in the Virginia case of Bostic v. McQuigg allowing same-sex marriages to proceed this day. The decision in this Virginia case, entered 28 July 2014, may also affect same-sex marriage cases in North Carolina, South Carolina and West Virginia [C2.10], [R2.9].

On 16 September 2014, US District Judge Robert Chambers in Huntington ordered the Casie Jo McGee and Sarah Elizabeth Adkins, et al., v. Karen S Cole, et al. case be stayed pending a decision of the US Supreme Court [C2.8], [R2.7].

On 10 June 2014, US District Court Judge Robert Chambers officially stayed the case, known as McGee v. Cole, until the US Court of Appeals for the 4th Circuit delivers a ruling on a similar case filed in Virginia [C2.6], [R2.5].

On 01 October 2013, Lambda Legal filed a federal lawsuit in the US District Court for the Southern District of West Virginia on behalf of three same-sex couples who are seeking the right to marry in the state [C2.4], [R2.3].

In April 2004, the West Virginia Supreme Court reportedly refused 3–2 to hear a case involving couple Jeremy Davis and Jamie Bailey challenging the state’s Defense of Marriage Act based on the alleged violation of their right to equal protection under the West Virginia Constitution [R2.2].

In December 2002, Marion County Family Court Judge David P. Born granted two women a dissolution of their Vermont civil union finding that the women are “citizens of West Virginia in need of a judicial remedy to dissolve a legal relationship created by the laws of another state.” Citing the women’s “irreconcilable differences,” Judge Born put asunder what Vermont had joined [R2.1].

In December 2011, the West Virginia Board of Education passed a new bullying policy [Policy 4373 – Expected Behavior in Safe and Supportive Schools] effective 01 July that reads –

“Acts of harassment, intimidation, or bullying that are reasonably perceived as being motivated by any actual or perceived differentiating characteristic, or by association with a person who has or is perceived to have one or more of these characteristics, shall be reported using the following list: race; color; religion; ancestry; national origin; gender; socioeconomic status; academic status; gender identity or expression; physical appearance; sexual orientation; mental/physical/developmental/ sensory disability; or other characteristic” [R1.1].

On 14 September 2018, it was reported that Berkeley County magistrate Richard Stephens issued a default judgment in favor of Christian Pastor Richard Penkoski and his wife Amanda Penkoski with a settlement of $10,000 against Paula Bowers. The Penkoski’s alleged Bowers broke the terms of an agreement to stop harassing them because of his ministry’s stand on the ”sinfulness” of homosexual acts and its opposition to same-sex ”marriage” [R2.3].

On 30 August 2017, Gilmer County agreed to pay $10,000 in damages, in a settlement recognizing the harms suffered, and apologized to Samantha Brookover and Amanda Abramovich who went to the Gilmer County courthouse to apply for a marriage license, which they were legally entitled to receive. Although they received that marriage license, they were disrespected and disparaged by staff at the County Clerk’s Office because they are a same-sex couple [C2.2], [R2.1].