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West Virginia

West Virginia Trans man wins broad nondiscrimination protections

LGBTQ people face a “patchwork of protections” against discrimination- The state is one of 29 with no law to ban discrimination in employment



Robb Livingood via Facebook

CHARLESTON, Wv. – A West Virginia Trans man won a three-year-long legal battle late last year, establishing legal precedent that protects LGBTQ+ people in the state from discrimination. 

Robb Livingood, a Trans man, sued West Virginia’s Fifth Judicial Circuit Public Defender’s Office, alleging it denied the public defender a position he was qualified for because he was transitioning – publicly presenting as a masculine woman and privately experimenting with different pronouns. The job ended up going to someone with significantly less experience, the Mountain State Spotlight reported

“I had spent a life building my resume and my qualifications, and I was bringing a lot to the table,” Livingood told the outlet, adding: “To be turned away from a job on a basis other than my qualifications, that just struck me as a gross injustice.”

In court filings, the Fifth Circuit Public Defender’s Office argued that Livingood was underqualified for the position and stated Trans people “are not a protected class under West Virginia’s Human Rights Act.” It also denied that the office discriminates on any basis in its hiring decisions, according to the Spotlight. 

However, a December 2021 ruling from a judge on West Virginia’s Human Rights Commission disagreed with both claims, saying that the office did discriminate against Livingood.

The interpretation of the West Virginia civil rights laws gives LGBTQ+ people in the state protections against discrimination. 

“It surprised me, in a good way,” Livingood told the Spotlight. 

The public defender’s office appealed the decision but did so after the deadline, the outlet reported. The commission has yet to decide whether they’ll consider the late appeal.

The ruling comes as West Virginia lawmakers have tried to pass a bipartisan proposal, called the Fairness Act, to update human rights law to include explicit protections for LGBTQ+ people in the state. Though the legislation has been endorsed across the state, including more than 100 diverse faith leaders, it has not made it out of the state legislature. 

In 2020, the U.S. Supreme Court ruled that existing federal law prohibiting discrimination in employment based on an employee’s sex also protects LGBTQ employees.
LGBTQ people face a “patchwork of protections” against discrimination, according to Fairness West Virginia. The state is one of 29 states with no state law to ban discrimination in employment. According to a Norman Analytics and Research poll, 81% of West Virginians believe non-discrimination laws in the state should be strengthened.


West Virginia

Settlement reached on gender markers, names on birth certificates

ACLU settles lawsuit after West Virginia officials reveal new process for amending names & gender markers on birth certificates



West Virginia Department of Health and Human Resources’ Vital Registration Office (Screenshot/YouTube WOWK CBS 13 News)

CHARLESTON, W.Va. – The West Virginia Department of Health and Human Resources’ Vital Registration Office has introduced more accessible and safer policies for transgender people seeking to amend their birth certificates.

This action implemented as a result of a settlement in a lawsuit brought by ACLU, ACLU of West Virginia, and the Harvard Law School LGBTQ+ Advocacy Clinic.

“This is a major victory for the thousands of transgender West Virginians who will now be able to obtain accurate birth certificates to help them navigate their lives more safely,” said Joseph Cohen, executive director of the ACLU of West Virginia. “But we know our work is not yet finished. Nonbinary West Virginians are still unable to obtain a birth certificate that accurately reflects their gender. Since April of this year, U.S. citizens have been able to select an X gender marker on passport applications. We will continue to work with our partners to update West Virginia’s policies so that all West Virginians can have the accurate identity documents they need.”

Access to accurate identity documents remains a critical issue for all people but especially transgender people. For years, the West Virginia Vital Registration Office required trans applicants seeking to amend the gender marker on their West Virginia birth certificate to produce a circuit court order directing the amendment.

In 2020, the West Virginia Supreme Court of Appeals stripped West Virginia circuit courts of the authority to order such amendments. Despite this ruling, the West Virginia Vital Registration office continued its policy of requiring transr applicants to produce a court order to amend the gender marker on their birth certificate, effectively barring gender marker amendments for trans people.

Further, trans applicants who previously successfully amended their gender marker and/or name on their birth certificate, still faced having to carry a birth certificate that left their deadname and incorrect gender marker clearly legible on the face of the newly amended birth certificate, due to the Vital Registration Office’s amendment method.

In August 2021, the ACLU, the ACLU of West Virginia, and the Harvard Law School LGBTQ+ Advocacy Clinic sued over both policies. The lawsuit demanded that the agency develop policies by which trans people with West Virginia birth certificates could both obtain a gender marker amendment and do so in a method that does not disclose their transgender status on the face of the amended birth certificate.

This past Spring, West Virginia’s Department of Health and Human Resources announced new birth certificate amendment policies. First, applicants, including trans applicants, who are seeking to amend the gender marker on their West Virginia birth certificate, no longer need a court order. They need only provide a simple provider attestation form available from the West Virginia Vital Registration Office’s website.

Further, the new policies amend birth certificates in a manner that reduces the risk of outing trans individuals who have had name and/or gender marker amendments by removing the previous information from the face of the newly amended birth certificate. These important policy implementations make birth certificate amendments more accessible and safer for trans applicants.

“This is an incredible policy change not only for our clients but all transgender people with West Virginia birth certificates who require amendments,” said Taylor Brown, lead counsel and Staff Attorney with the ACLU LGBTQ & HIV Project. “West Virginia’s new policies restore a greater degree of autonomy and self-determination for transgender people in West Virginia. In today’s climate, it is more important than ever for the government to leave personal decisions of these kinds where they belong, between an individual and their provider. Not a court, legislators, or administrative bodies. This is an important win for those reasons alone.”

“This is a tremendous victory for the transgender people of West Virginia, who will now be able to update this crucial identity document without having to pursue an unnecessary, long and expensive process to obtain a court order,” said Malita Picasso, Staff Attorney with the ACLU LGBTQ & HIV Project. “Now, transgender West Virginians will not be forced to disclose their transgender status every time they present a birth certificate with a gender marker that does not match their gender identity.”

“Birth certificates and other identity documents are essential to navigate daily life,” said Alexander Chen, Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic. “Like driver’s licenses, birth certificates are commonly used to verify a person’s identity.  That transgender West Virginians can now obtain birth certificates matching their true selves is an important part of making our country more reflective of our core constitutional values, including recognizing the fundamental dignity and right to privacy of every person.”

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West Virginia

Students in West Virginia walk-out over classroom Pride flag ban

Speaker after speaker reinforced the fact that the Pride flag was symbolic of the LGBTQ+ community and not a pollical statement or gesture



Students walk-out in Morgantown, WVA over Pride flag ban (Photo Credit: Trans Appalachian Organizer

MORGANTOWN, WVa. – The Monongalia County Board of Education decision to uphold its August decision to ban all LGBTQ+ Pride flags from district classrooms on Tuesday prompted walkouts by students with some faculty members in protest Wednesday.

The board decision also drew sharp criticism from more than half of Morgantown’s City Council members. Deputy Mayor Danielle Trumble told the Morgantown News that she’s very disappointed with the decision to “make accepting children, making children feel welcome and accepted, as our city says we want to be, that should not be a political decision.”

Especially, Trumble continued, when LGTBQ+ youth are at higher risk of depression and suicidal tendencies.

Mayor Jenny Selin weighed in saying that the Pride flags classrooms signal an area that is a safe space for those who identify with what the flag symbolizes.

“As such it can make a student at a highly volatile time in their life know where they might find an ear, or a friend or someone to talk to in that particular classroom,” Selin said.

In that light, it doesn’t seem to be political and Selin said she thinks it’s important to be able to find those safe spaces.

Third Ward representative Ixya Vega addressed the widely shared idea by conservatives and the far-right that display of the LGBTQ+ Pride flag was political.

“Supporting a child is not a political movement,” Vega said. “It is simply supporting a child, which is the job of the school systems. I’m so sorry to the students who have been made to feel less than and this does not align with our city’s values.”

West Virginia University has its main campus in Morgantown and the student-run campus newspaper, The Daily Athenaeum, reported that in yesterday’s board meeting, Dozens of people, including parents, teachers and students, spoke out with a majority expressed concern with the ban on Pride flags.

Morgantown Pride president Ash Orr in an interview with The Daily Athenaeum noted; “We are just here to kind of amplify them right now, as well as speak on their behalf because some of them do not feel safe coming forward because they fear retaliation,” Orr said.

“We are here to not only help them, but we also, as a board, want to make sure that future students, faculty and staff that go through these halls are able to feel safe and represented.”

In the board meeting, Orr referenced an email sent by a member of Mass Resistance, a national anti-LGBTQ+ hate group, to them and members of the Board of Education. They added that the email was shared with students, teachers and parents in Monongalia County.

The email outlined religious beliefs and online references against the LGBTQ community in general, encouraging the BOE’s decision to ban the flag, according to Orr.

Orr said the email is an example of the platform that is given to “hate speech” and “hate crimes” by making it acceptable to say that the pride flag, a symbol for the community, is political.

“It’s the kids, the faculty and the staff who are inundated with this harassment and hatred every day in an environment where they’re supposed to be feeling safe,” they said. “That’s what scares me.”

Speaker after speaker reinforced the fact that the Pride flag was symbolic of the LGBTQ+ community and not a pollical statement or gesture. However at the end of the meeting according to The Daily Athenaeum, schools superintendent Eddie Campbell reinforced the decision, supporting himself with statements from legal advisors. He said removing the pride flags from classrooms falls in line with the BOE policy that states “non-school related activities, including political activities, do contribute to a positive learning climate and may be disruptive, divisive and distracting.”

On Wednesday LGBTQ+ students, allies, and some faculty members walked out in protest:

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West Virginia

W.Va. gay man sues Spirit Halloween after manager harassment, f-slur

Spirit Halloween and Penn accused of violating the West Virginia Human Rights Act, which protects people from sex-based discrimination



Trevor Anderson, his partner and Ben Salango, the attorney handling the case (Courtesy of Fairness West Virginia)

CHARLESTON, Wv. – A gay man in West Virginia’s capital of Charleston was denied service, harassed and called a homophobic slur by the manager of a local Spirit Halloween in October of last year, a recently filed lawsuit alleges. 

LGBTQ+ rights group Fairness West Virginia filed the complaint in a Kanawha County court in late March, suing both the seasonal Halloween chain and Thelmon Penn, a manager at the store, for discrimination. The lawsuit alleges Penn called Trevor Anderson, the plaintiff, a homophobic slur and chased him out of the store, threatening to fight him. 

Anderson was visiting the Spirit Halloween on MacCorkle Ave. at approximately 8 p.m. late last October to return a costume he purchased, according to court documents. Penn was standing nearby when Anderson placed the items on the counter and told the cashier he would “handle this.”

Penn asked Anderson why he wanted to make the return, the complaint said. Anderson told him the costume didn’t fit. 

“Maybe you shouldn’t try to wear women’s clothes,” Penn said, according to the lawsuit. 

Anderson asked for a manager, to which Penn responded that he was the manager, said court documents. Anderson told him his comments were out of line and asked for his contact information. 

“I’ll give you my name, but I’m not giving my number to a f**got,” Penn allegedly said. 

“Get out of my store,” he added, according to court documents, threatening to “beat his ass” if he returned.

As Anderson left the store, Penn followed him out – all the way to his car, said the complaint. Penn removed his shirt and said he would “beat your f**got ass,” attempting to physically assault Anderson. 

“Since that day, I’ve been looking over my shoulder,” Anderson said in a Fairness West Virginia press release. “There have been times where I didn’t even want to run errands or go out in public — to work, even — because the anxiety of leaving the safety of my house is too much to handle.”

Anderson is accusing both Spirit Halloween and Penn of violating the West Virginia Human Rights Act, which protects people from sex-based discrimination, and Charleston’s local fairness law, which explicitly bans discrimination based on someone’s sexual orientation or gender identity. Fairness West Virginia is arguing that the state’s Human Rights Act applies to the case because the U.S. Supreme Court’s ruling in Bostock v. Clayton County also protects LGBTQ+ people.

“Depending on how this case goes, we may ultimately see a ruling that explicitly adopts the Bostock ruling for [West Virginia’s] law,” Jake Jarvis, the communications director for the group, told the Blade. “That would be a huge win for LGBTQ people in our state.”

Spirit Halloween did not immediately respond to the Blade’s request for comment. 

“Incidents like this don’t just affect the victim. They also instill fear in members of the entire LGBTQ community,” said Andrew Schneider, executive director of Fairness West Virginia. “The truth is, discrimination is a real problem in our state, and that’s why it’s so important that we have laws on the books to protect people like Trevor. We need our leaders at the Legislature and in Congress to take this seriously. No one should have to experience what Trevor did. No one should live in fear.”

Ben Salango, who is the attorney handling the case, said Spirit Halloween’s corporate headquarters “is well aware of this incident.”

“However, to date, there has been no apology for the outrageous and discriminatory actions of its manager,” he said. “Spirit Halloween left Mr. Anderson with no alternative but to file a lawsuit.”

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West Virginia

West Virginia’s capital bans conversion therapy for LGBTQ kids

Conversion therapy is widely opposed by prominent professional medical associations including the American Medical Association



The City of Charleston, West Virginia waterfront (Photo Credit: The City of Charleston)

CHARLESTON, W.Va. – The City Council of West Virginia’s capital city became the first municipality in the state to enact an ordinance banning the widely discredited practise of conversion therapy. In a 14-to-9 vote, the council passed the ordinance Monday to protect LGBTQ youth from the practise.

Conversion therapy is widely opposed by prominent professional medical associations including the American Medical Association, the American Psychological Association, and the American Academy of Pediatrics. The proposed ordinance carries a fine of up to $1,000 for violations.

“All of Charleston’s children deserve love and respect for who they are, and no one should be in the business of trying to shame or humiliate teenagers out of being LGBTQ,” said Andrew Schneider, executive director of Fairness West Virginia. “Our city’s medical and faith communities came out strongly in support of this bill to ban the dangerous and discredited practice of conversion therapy, and I congratulate members of city council for bravely approving it.”

“The Trevor Project is thrilled to see historic action being taken in West Virginia to protect LGBTQ youth from the dangers of conversion therapy. This discredited practice is not therapy at all — it’s been debunked by every major medical organization and shown to increase suicide risk,” said Troy Stevenson, Senior Advocacy Campaign Manager for The Trevor Project. “We are hopeful that this victory will help catalyze the passage of state-wide protections in the Mountain State, ensuring that no young person in West Virginia is subjected to this fraud at the hands of mental health providers.”

 A total of 20 states, as well as the District of Columbia, the Commonwealth of Puerto Rico, and 94 municipalities (mostly located in Florida, Ohio, Pennsylvania, Wisconsin, Michigan, and Minnesota), have banned the practice of conversion therapy on minor clients. Minnesota and Michigan’s Governors earlier this year signed executive orders that prohibit state funds being expended on the practise.

Research Findings:

  • According to The Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health, 13% of LGBTQ youth reported being subjected to conversion therapy, with 83% reporting it occurred when they were under age 18. LGBTQ youth who were subjected to conversion therapy reported more than twice the rate of attempting suicide in the past year compared to those who were not.
  • According to a peer-reviewed study by The Trevor Project published in the American Journal of Public Health, LGBTQ youth who underwent conversion therapy were more than twice as likely to report having attempted suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year.
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West Virginia

Conservative West Virginia state GOP lawmaker comes out during Pride

“I’m still a conservative Republican. That’s rare, I know, but you can be gay and Republican. You can be gay and conservative.”



Joshua Higginbotham (Screenshot via WCHS ABC News 8 Charleston, W.VA)

CHARLESTON, WVA. – A conservative Republican lawmaker in the House of Delegates took to Twitter and other social media platforms this past weekend announcing that he is gay. Twenty-four year old Joshua Higginbotham said that he felt he owed it to the voters of West Virginia, after recently deciding to share it with his family and friends.

Higginbotham, who was first elected to the House when he was only 19, represents rural Putnam County located alongside Interstate 64 between the state’s capital city of Charleston to the East and Huntington to the West. His campaign adverts have all trumpeted his avid support of the Second Amendment as well as taking a pro-life position.

However, a check of some of his recent legislation shows a more progressive mindset. He is lead sponsor on House Bill 2998, a measure amending the State’s current codes relating to unlawful discriminatory practices in four categories covered by the West Virginia Human Rights Act and the Fair Housing Act, adding language that prohibits discrimination based upon age and sexual orientation, or gender identity; and defining “sexual orientation” and “gender identity.”

That measure, earlier in the legislative session, led to a series of conflicts which involved the state’s only other openly gay lawmaker, Democratic Delegate Cody Thompson (D43-Marion). Republican House Delegate John Mandt, who resigned after posting an anti-gay slur but then was re-elected drew harsh criticism for an extended online diatribe opposing protections against discrimination based on sexual orientation and gender identity the Associated Press reported earlier this year on February 7, 2021.

In his social media video as well as in an interview with reporter Anthony Conn from the local ABC News affiliate WCHS 8 in Charleston, Higginbotham said, “I am still a Christian. People think that gay people can’t be Christians.  I believe God loves me no matter what. I’m still a conservative Republican. That’s rare, I know, but you can be gay and Republican.  You can be gay and conservative.”

He added referring to his conservative politics that “nothing changes except now [you] know about my personal life.”

The statewide LGBTQ advocacy group Fairness West Virginia applauded the delegate’s decision to come out. “We think that it’s great that Delegate Higginbotham can lead his authentic life now. This must be a big burden that’s lifted off his shoulders,” Executive Director Andrew Schneider told WCHS ABC 8.

There are some in the state who are critical of Higginbotham. One source who asked to not be identified, told the Blade in a phone call Tuesday that Higginbotham’s support of former President Trump raised some doubts as to his veracity especially in issues surrounding Transgender West Virginians.

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Federal Court rules the West Virginia Trans healthcare suit will proceed

No one should be denied coverage for health care simply because they are transgender.



Robert C. Bryd Federal Courthouse Charleston, WVA (Photo Credit: GSA U.S. Government)

CHARLESTON, WVA. – A U.S. District Court judge denied the State of West Virginia’s request to dismiss a lawsuit brought in November of last year by Lambda Legal, Nichols Kaster, and The Employment Law Center, challenging the state’s ban on gender-confirming care in West Virginia’s Medicaid and state employee health plans.

In his ruling, U.S. District Court Judge Robert C. Chambers wrote, “”Assuming that the Plaintiffs’ allegations are true, as the Court must at the pleading stage, WVDHHR enacted a clear policy that excludes gender-confirming surgical care with no exceptions… This barrier constitutes a concrete, non-speculative injury. Given this injury, Fain has standing to sue, and his claims challenging the policy are ripe for review. To the extent that the Exclusion does not constitute an outright denial, the Court finds that a request for gender-confirming surgery would be futile. To hold otherwise would require an individual to request a benefit even when he or she knows that the defendant maintains a clear policy to deny that request.”

Avatara Smith-Carrington, the lead lawyer in the case for Lambda Legal in an emailed statement said; “This decision is a great step forward for our plaintiffs. No one should be denied coverage for health care simply because they are transgender. We are very pleased that Judge Chambers found that Lambda Legal’s challenge to the state’s categorical denial of gender-confirming care to transgender Medicaid and PEIA participants deserves to be heard on the merits. The state’s denial of health care inflicts severe harms on transgender West Virginians, and we are grateful our clients will get their day in court.”

Fain v. Crouch is a class action litigation challenging blanket exclusions of coverage for gender-confirming care in West Virginia’s state health plans. The blanket exclusions of coverage for care are stated expressly in the health plans offered to Medicaid participants and to state employees. West Virginia’s state health plans serve approximately 564,000 Medicaid participants and15,000 state employees.

In the statement released Thursday, Lambda Legal also noted:

Christopher Fain studies nonprofit leadership at Marshall University and works at a clothing store in Huntington. He is enrolled in Medicaid, the nation’s largest healthcare provider for low-income individuals, but the program has an explicit exclusion on coverage for gender-confirming care. The Medicaid plan’s exclusion of coverage for health care has caused Mr. Fain economic hardship and humiliation.

Zachary Martell is married to Brian McNemar, who works as an accountant at a state hospital. Both Mr. Martell and Mr. McNemar rely on the state employee health plan for coverage. Mr. Martell—who receives coverage for care as Mr. McNemar’s dependent — has been denied coverage both for his prescriptions and office visits with his healthcare provider because the state employee health plans explicitly exclude coverage of “treatments associated with gender dysphoria.” As a result, Mr. Martell and Mr. McNemar have been forced to pay out-of-pocket for Mr. Martell’s care and, at times, even delay or forego care altogether.

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