After a court threw out a ruling that the assault of two gay men was a hate crime, West Virginia's Supreme Court is now debating whether LGBTQ people are actually protected under the state's anti-hate laws.

According to the Charleston Gazette-Mail, Steward Butler was indicted by a grand jury for assaulting two men in 2015 after they had reportedly kissed. Butler had apparently yelled homophobic slurs before assaulting the men. A grand jury decided Butler should be charged with both a hate crime and battery after punching Zackary Johnson and Casey Williams, but a judge threw out the hate crime charges after Butler's attorney pointed out the state's anti-hate laws protect discrimination based on sex — but not sexual orientation. Even though sex has been expanded to mean sexual orientation in court, the West Virginia Supreme Court is now trying to determine that for themselves.

“If Mr. Williams had been Miss Williams, neither victim would have been violently attacked,” Prosecutor Lauren Plymale said in court, arguing that, orientation aside, this is a case based on sex discrimination.

According to Slate, state Supreme Court Justices have argued in this case that state law specifically leaves out orientation from its hate crime language, and including it in a court decision would amount to legislating from the bench.

"The statute is crystal clear. The legislature, in terms of separation of powers, has the ability to write sex orientation in the statute, which it did not do this last session. Are you asking us to legislate from the bench?," Justice Robin Jean Davis said, according to Slate. "Why do you have to interpret when the statute does not use the words?”

According to the Gazette-Mail, a bill that would have added "sexual orientation" to West Virginia's civil rights law was struck down during the most recent legislative session.

Related: Legal Medical Marijuana Could Reduce Opioid Deaths in West Virginia