Robb Livingood checked every required box on the job listing when he applied to be a public defender for West Virginia’s 5th Judicial Circuit in Jackson, Calhoun, Mason and Roane counties. He was a graduate of West Virginia University, with glowing recommendations, an impeccable resume and a license to practice law.
“I had spent a life building my resume and my qualifications, and I was bringing a lot to the table,” Livingood said.
But after an interview, Livingood wasn’t offered the job, and the position ultimately went to someone with significantly less experience — the only other person who applied for the position.
The reason, Livingood says, was because he was transitioning. At the time, he was publicly presenting as a masculine woman and privately experimenting with his pronouns, but had yet to come out as transgender.
“I began to notice as a masculine woman named Robb, that I would encounter various kinds of discrimination — I was called a transgender slur during a different job interview,“ Livingood said. “To be turned away from a job on a basis other than my qualifications, that just struck me as a gross injustice.”
He submitted a handwritten complaint to West Virginia’s Human Rights Commission. In response, the 5th Judicial Circuit’s Public Defender’s Office argued in court filings that Livingood was underqualified for the position and stated transgender people “are not a protected class under West Virginia’s Human Rights Act.” When asked to comment on this story, the circuit’s Chief Public Defender, Kevin Postalwait, denied that the office discriminates on any basis in its hiring decisions.
After a three-year legal battle, the judge has ruled that the public defender’s office was wrong on both counts, and that they did in fact discriminate against Livingood when they didn’t hire him. But the judge’s interpretation of West Virginia civil rights laws also established a remarkable legal precedent: that West Virginia’s Human Rights Act protects people discriminated against on the basis of their sexual orientation or gender identity.
“It surprised me, in a good way,” Livingood said of the decision.
The public defender’s office appealed the ruling after the deadline to do so, and the commission hasn’t yet ruled on whether they’ll consider the late appeal. But assuming Judge Gregory Evers’ ruling stands, it’s a tenuous victory: subject to the whims of the appointed Human Rights Commission, and at risk of being rolled back by state lawmakers, who have already introduced numerous bills this session that could erode the progress.
A tenuous victory
Year after year, despite pressure from LGBTQ and other civil rights groups, West Virginia lawmakers have declined to write protections against gender and sexual identity discrimination into the state’s civil rights code.
In the face of their inaction, the legal precedent set by Livingood’s victory is an important step forward for LGBTQ West Virginians. But, like any legal decision, it could be reversed at some point.
The judge who decided Livingood’s case was appointed by the executive director of West Virginia’s Human Rights Commission, the office that oversees the implementation of civil rights laws prohibiting discrimination in employment, housing and public accommodation. The commission is made up of nine political appointees who serve three- to four-year terms.
“The makeup of the Human Rights Commission can change at any time, and their interpretations of the law can change at any time,” said Andrew Schneider, director of the LGBTQ advocacy group Fairness West Virginia.
A different group of commissioners could appoint a different judge who might come to a different conclusion about whether LGBTQ rights are protected under the Human Rights Act. And moreover, if that judge’s decision is appealed, the commissioners are the ones who will rule.
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Beginning in July, there’s another political layer: the newly-established intermediate appeals court, which will handle appeals of decisions made by the commissioners. All of the judges were just appointed by Gov. Jim Justice, who has been a vocal proponent of a law prohibiting transgender athletes from participating in school sports teams consistent with their gender identity.
Because the public defender office submitted their appeal late, it’s unlikely the Human Rights Commission would allow their challenge in Livingood’s case to stand. The state attorney general’s Civil Rights Division submitted a letter calling such a move illegal.
And had Livingood not been able to retain the services of Mountain State Justice, he would have been assigned an attorney from Attorney General Patrick Morrisey’s office. Morrisey has a history of supporting anti-transgender litigation, both involving the state of West Virginia and otherwise.
“I did not feel safe trusting an openly anti-LGBTQ attorney general to protect my interest in the case, which is what motivated my search to find someone to champion my cause,” Livingood said.
A spokesperson for Morrisey didn’t return a request for comment.
The current system is why Schneider and other LGBTQ advocates in West Virginia have long championed the Fairness Act, which would expressly prohibit discrimination against LGBTQ West Virginians.
“We need to have these protections to be permanent and enshrined in our legal code,” Schneider said.
Currently, West Virginia’s state laws are among the least protective in the country for gay and transgender people, according to a recent report by the Human Rights Campaign Foundation, a national LGBTQ advocacy group.
Versions of the Fairness Act have been introduced in many legislative sessions, often with some bipartisan support, but have never passed.
This year, Senate Majority Leader Tom Takubo, R-Kanawha, has sponsored a bill that would put language into the Human Rights Act expressly including LGBTQ protections. It has three Democratic co-sponsors. A similar bill was introduced in the House of Delegates with strictly Democratic sponsors. Neither has come before a committee this year.
The 2022 session
But even as there’s no movement on bills to expand protections to all West Virginians regardless of their sexual orientation or gender identity, some bills are moving that could actively roll protections back.
One is a bill that would allow for a ballot referendum on any municipal ordinance, so long as residents can get a petition signed by 15% of the number of people who voted in the previous election. The measure, which has already passed a House of Delegates committee, does not directly impact municipal discrimination laws. But it could end up undermining the 15 West Virginia municipalities that have already passed their own non-discrimination measures in the face of state government inaction.
Several cities already have laws allowing for similar referendums. One of those is Fairmont, which passed a LGBTQ nondiscrimination law in 2017.
Anti-LGBTQ activists, led by the lobbying group, the West Virginia Family Policy Council, pushed for a referendum and were able to force a vote. More than 57% of Fairmont voters decided to keep their ordinance once it was on the ballot the following year.
But seeing near-success, the Family Policy Council began pushing for state law allowing all cities to put local ordinances to a vote, and included questions about lawmakers’ positions on such a law in their election-year candidate survey.
With a low threshold for forcing a referendum, and typically low voter turnout for municipal elections, LGBTQ advocates believe the bill is merely a way to allow a minority of citizens to overturn existing local nondiscrimination laws.
“This bill isn’t about democracy,” Schneider said. “It’s democracy for the few.”
The bill’s lead sponsor, Delegate Carl Martin, R-Upshur, would not answer questions about the legislation.
But this isn’t the only bill that could erode the few current protections for LGBTQ West Virginians. There’s also the surreptitiously titled “West Virginia Intrastate Commerce Improvement Act,” sponsored by four House Republicans, that would prohibit any city or county from creating its own nondiscrimination laws.
Eli Baumwell, the advocacy director at the West Virginia branch of the American Civil Liberties Union, says bills like this “can slip by and seem very innocuous, if you weren’t paying attention to language. So we’re always watching those.”
There has also been relatively broad support for a handful of bills introduced in both chambers of the statehouse allowing for individuals and businesses to deny services to LGBTQ West Virginians by claiming religious exemptions.
In the House, there are two versions of such a bill, one rolled over from last session, that collectively have 17 sponsors.
The lead sponsor of both bills, Delegate Tom Fast, R-Fayette, is the vice chairman of the House Judiciary Committee, where they’ve both been sent and sit inactive. He did not respond to a request for comment.
There are also two versions of a similar bill in the Senate, one rolled over from last year.
Proponents of such bills argue that they would be a draw to businesses. But a recent poll found that 81% of West Virginians support LGBTQ non-discrimination laws, and 62% feel that strengthening these protections would draw more businesses, with little difference along party lines.
“My being LGBTQ and existing does not rob anyone of their religion,” Livingood said in an email. “You are still free to believe, pray, and worship however you please — so long as you don’t infringe on the rights of others.”
If any of these discriminatory bills were passed, they would likely result in a lawsuit which could challenge the interpretation of the Human Rights Act that led to Livingood’s victory.
However, Livingood’s victory didn’t happen in a vacuum.
The 2020 U.S. Supreme Court case, Bostock v. Clayton County, saw a conservative-majority court rule in a 6-3 decision that denying employment or firing people because of their gender status was unconstitutional. And last year, a federal appeals court upheld a ruling that allowed a transgender student in Virginia to use a bathroom consistent with their gender identity, in spite of opposition from a number of Republican attorneys general, including Morrisey.
“An important role that these sorts of rulings play in the fight for rights, is that they tell people, ‘look, you don’t just have to take what’s given to you,’ ” said Aubrey Sparks, Livingood’s attorney. “There are options available, and courts are seeing that.”
And for Livingood, who grew up in Boone County, the ruling sets an important precedent in the state that’s always been his home.
“West Virginia has the highest rate of transgender youth in the nation, and every West Virginian deserves the opportunity to be considered on their merits,” Livingood said. “I feel like I have seen very uniquely hopeful stories come out of West Virginia, and fortunately mine is one of them.”