With their first supermajority since taking control of the West Virginia Legislature, Republican lawmakers laid out an ambitious agenda going into the regular 2021 session in February.
The bills they passed included a ban on transgender girl student athletes participating in girls’ school sports, weakening unions’ abilities to collect dues from employees, and restrictions on harm reduction programs amid what the U.S. Centers for Disease Control and Prevention has called the country’s most alarming HIV outbreak in Kanawha County.
All three of those laws are now being challenged in court. Judges have already temporarily stopped two of them — the harm reduction clinic restrictions and the curb on union dues collections — as the lawsuits proceed. A ruling on the harm reduction case is expected Thursday.
In addition to the three bills already involved in litigation, three others identified by Mountain State Spotlight bear a striking similarity to bills passed by other Republican-led state legislatures that have been challenged in courts — successfully, in some places. As a result, West Virginia taxpayers may end up footing the bill for costly — and predictable — legal battles.
The day after the legislative session ended, but before all the bills had been signed by Justice, West Virginia Attorney General Patrick Morrisey announced on Facebook that he was preparing legal defenses for a number of bills, including the state’s ban on transgender athletes in girls’ sports and three others that have yet to see lawsuits.
On April 27, roughly one month before any lawsuits were filed, his office posted a request for outside lawyers and firms, writing that his office “anticipates that in the coming months there will be additional legal work required to defend both client agencies and legislation.”
“I don’t think it’s that uncommon to have a flurry of suits shortly after session,” said Bob Bastress, a lawyer who is representing the AFL-CIO and other unions in their lawsuit against the “paycheck protection” law that limits unions’ ability to collect dues. But Bastress believes Republicans’ veto-proof majority emboldened them to pass laws that “push the envelope a bit more” in their ideological bent or tests of constitutionality. Bastress is also a law professor at West Virginia University who specializes in West Virginia constitutional law.
House of Delegates Speaker Roger Hanshaw, R-Clay, and Senate President Craig Blair, R- Berkeley, would not comment on the lawsuits, or the bills at the heart of them. The lead sponsors on each of the bills — Delegates Geoff Foster, R-Putnam; Caleb Hanna, R-Nicholas; Kayla Kessinger, R-Fayette; and Brandon Steele, R-Raleigh, as well as Sen. Eric Tarr, R-Putnam — did not respond individually to requests for comment.
House spokeswoman Ann Ali and Senate spokeswoman Jacque Bland said in an email, “Our system of government provides for three separate branches — the legislative to write the laws, the executive to enforce them and the judicial to interpret them should there be a need. In the 2021 Regular Session, 280 bills became law, and only three of them have been the target of a legal challenge. It’s now up to the judicial branch to interpret those laws as they were passed.”
In an email, Attorney General’s Office spokesman Curtis Johnson said, “There is good reason for our office to defend these pieces of legislation; chief among them is the Attorney General’s duty to defend the constitutionality of state laws. The West Virginia Legislature had a very productive 60-day session and its residents should rest comfortably in knowing that our office takes seriously its role.”
The lawsuits begin
On May 20, West Virginia public employee unions sued over House Bill 2009, banning the mandatory collection of dues from represented employees whether or not they support the union collecting them. The unions claim the bill is direct retaliation following teacher strikes in 2018 and 2019 for better pay and health insurance.
Within a week, the West Virginia chapter of the American Civil Liberties Union filed a lawsuit on behalf of a transgender middle-school student from Bridgeport over House Bill 3293, which bans transgender girls from participating in girls’ school sports. The filing stated that the law “was prompted by unfounded stereotypes, false scientific claims, and baseless fear and misunderstanding of girls who are transgender.”
Since the lawsuit was filed, the U.S. Department of Justice has filed a statement of interest in the case, saying such a law would amount to “unlawful discrimination” under the protections afforded by the 14th Amendment and Title IX.
The most recent lawsuit, also filed by the ACLU-WV on June 25, was over Senate Bill 334, which would severely restrict harm reduction programs.
Also, West Virginia lawmakers passed three bills that strongly resemble laws in other states that have been challenged in courts as unconstitutional.
One bill, which received bipartisan support, would require government contractors being paid over $100,000 to declare in writing that they will not participate in any boycotts of Israeli goods or services. Similar laws were successfully challenged in multiple states before West Virginia lawmakers passed their bill. Judges in Arkansas, Arizona, Texas, and Georgia deemed that such laws violated contractors’ First Amendment rights. Several states have amended their laws to put a $100,000 floor on contractors the requirement would apply to — similar to the law in West Virginia. But in all cases, the laws still have the same fundamental issues that had them ruled unconstitutional.
Another bill would require reproductive health care providers to inform women undergoing medical abortions that the process can be reversed through hormonal treatment. While advocates say the bill could help women who may ultimately regret their decision, health experts have warned that such information may be misleading. The treatment is unproven, and may amount to subjecting patients to “unmonitored experimentation,” according to a statement from the West Virginia chapter of the College of Obstetricians and Gynecologists.
In Indiana, enforcement of a similar law was blocked by a federal judge last month as a lawsuit challenges its constitutionality.
Also, a bill to make West Virginia a “Second Amendment sanctuary,” forbidding West Virginia police to comply with any federal order to confiscate guns, is similar to a Missouri law being challenged by St. Louis County. Unlike the West Virginia law, however, the Missouri law would subject law enforcement agencies to $50,000 fines for complying with such orders — a particular sticking point with St. Louis attorneys that brought the suit.
The bills are part of a national trend of Republican-majority legislatures across the country passing an array of what are sometimes known as “culture war bills.” Besides the usual opponents, the bills have inspired boycotts from a number of private companies that can affect a state’s bottom line.
When asked about his support for the transgender athelete bill, for example, Gov. Jim Justice acknowledged his concern about a proposed NCAA policy that they would refuse to hold championships in any states that had such laws. Still, he committed to seeing the bill passed.
In response, the state of California banned any state-funded travel to West Virginia, as it has done for 16 other states that have such laws.
Correction: This story originally misstated the nature of the Republican supermajority.