I agree with Bil 100%--at this point I’m not sure state-by-state efforts are as effective. We’ve made some major federal milestones lately, and the prospects for an inclusive ENDA are looking pretty damn good. We may well be standing on the precipice, looking into a world of full national legal equality for LGBTQ Americans. But there’s a lot of work still yet to go.
Back in July I wrote about some queer resistance to hate crime legislation. Among the main queer opponents was the Sylvia Rivera Law Project, who in April announced their non-support of New York’s Gender Employment Non-Discrimination Act (GENDA) due to the inclusion of hate crimes legislation. The points SRLP makes are startling, citing that the LGBT community and people of color are routinely targeted by police and arrested regardless of guilt. SRLP asserts that hate crime legislation will only add ammunition to the machinery of oppression:
Trans and gender non-conforming people, particularly trans women of color, are regularly profiled and falsely arrested for doing nothing more than walking down the street... Once arrested, the degree of violence, abuse, humiliation, rape, and denial of needed medical care that our communities confront behind bars is truly shocking, and at times fatal.
The fear is that not only is the criminal justice system already profiling LGBTQ people and people of color, but that hate crimes laws will intensify this oppression at the hands of law enforcement. The SRLP cites the case of the “New Jersey 4,” a group of queer women of color who were incarcerated for defending themselves against a homophobic assault; the straight man who was attacking them claimed they had committed a “hate crime” against him. Hate crime laws could, potentially, be turned around and utilized to oppress marginalized groups whenever they defend themselves against attacks, or they could escalate the problems created by demographic profiling:
Compared to white men, Black men are disproportionately arrested for race-based hate crimes. The second-largest category of race-based hate crimes tracked by the FBI is crimes committed against white people. Every year, the FBI reports a number of so-called “anti-heterosexual” hate crimes—incidents where members of the LGBT community have been prosecuted for supposedly targeting straight people with criminal acts.
But above all else, the SRLP’s concern seems to be for the real victims of hate crimes:
The real victims who are liable to be thrown to the wolves in this case are the most marginalized members of trans and gender non-conforming communities: poor people, people without jobs or housing, people who resort to survival crimes in order to get by or access health care, people with substance abuse problems, sex workers, youth, people with disabilities, and so many more who are disproportionately targeted for violence, harassment, prejudice in the courts, and incarceration. These are the same people our community must mourn every year at the Trans Day of Remembrance.
I don’t know many people who, after looking at the criminal justice system for five minutes, would suggest that there is nothing wrong. Our system is broken, and it has been broken for a long time. There’s evidence that our focus on punishment is actually detrimental to increasing safety and civility; that increasing the punishments for crimes will only make those who commit the crimes more impoverished and more alienated. While I am certain the fears of the SRLP are founded, I have questions concerning the frequencies of the abuses of the criminal justice system in relationship to hate crimes. I’m certain the examples cited by the SLRP occur—there has been a lot of evidence concerning the disproportionate incarceration of people of color, but I don’t know what the figure are for LGBT people. The APA had this to say:
A defendant's transgender status could affect decisions to arrest, influence jury verdict decision-making and could lead to disproportionate sentences exceeding what is typical for the crime committed. To date, there is little if any empirical research that examines the verdicts against and the sentences given to transgender offenders in relation to their crimes. This research is crucial to gain insight as to whether transgender offenders are treated differently than nontransgender individuals for similar crimes.
Furthermore, there wasn’t much evidence concerning disproportionate incarceration of LGBT people. As I said, I’m sure the arguments of the SRLP are founded to some degree, but I don’t know how much of their fears are represented in reality. The studies haven’t been adequately done (from what little I’ve been able to gather), but that doesn’t mean this is not a very real problem. It just means, like much of LGBT social situations, it has not been as well studied. What is clear is that we do need to reform our criminal justice system, but does that preclude hate crime legislation?
There are many structural problems with hate crime legislation, just as there are many benefits. As NCTE announced this morning (or this evening for you folks in the US):
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act will have a number of positive impacts. First, it will help educate law enforcement about the frequent hate violence against transgender people and the need to prevent and appropriately address it. Second, it will help provide federal expertise and resources when it is needed to overcome a lack of resources or the willful inaction on the part of local and/or state law enforcement. Third, it will help educate the public that violence against anyone is unacceptable and illegal.
Additionally it seems that having this pass at the federal level sets an amazing precedent for further legal battles (such as ENDA). These are all very positive outcomes of the passage of the hate crimes bill. As Judy Shepherd said:
Dennis and I are extremely proud of the Senate for once again passing this historic measure of protection for victims of these brutal crimes. Knowing that the president will sign it, unlike his predecessor, has made all the hard work this year to pass it worthwhile. Hate crimes continue to affect far too many Americans who are simply trying to live their lives honestly, and they need to know that their government will protect them from violence, and provide appropriate justice for victims and their families.
I agree with Mrs. Shepherd, especially when she calls for appropriate justice. At the end of the day, my feelings are mixed on this issue, but overall I’m fairly happy. We have a lot of work still yet to go for LGBT equality as well as reforming our justice system to operate in a manner that is adequate, appropriate and fair. Above all else, I see today as a historic marker: the plight of LGBT people has been recognized by our federal government and they have, on this issue, said in a large majority that the violence suffered by the LGBT community must stop. They have said that hate against people regardless of their sexual orientation or gender identity/expression must be confronted. With the anniversary of Matthew Shepherd’s death nearby and the Day of Remembrance just around the corner, this affirmation from our national leaders gives me hope that we can change the world to be more affirming and accepting of us. Regardless of what undesired side effects this laws may have, the intentions behind the law are clear. It’s taken us a long time, but we have changed the opinions of our leaders, gotten them to see us a little bit more as valuable and as human beings. I know that sounds like a cop out—that should be a given. But it’s not. I have hope that the affirmations we’re seeing in this Congress can become more widespread across the world. Hope.
It’s the same emotion Sylvia Guerrero, the mother of Gwen Araujo, said she held on to the most after her daughter was stolen from her. It’s the hope that through education and advocacy we may “celebrate more birthdays and commemorate fewer murders.”
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