July 29, 2019 Summer 2019

Bias-Motivated Violence Based on Sexual Orientation, Gender Identity, or Gender Expression

Acts of violence based on sexual orientation or gender identity are on the rise throughout the world A report from the Organi- zation for Security and Cooperation in Europe’s Office of Demo- cratic Institutions and Human Rights shows a 63 percent increase in reported crimes based on sexual orientation or gender identity from 2014 to 2017. In 2015, the Inter- American Commission on Human Rights noted a life-expectancy among transgender women to be between 30 and 35 years whereas the expectancy of the general population was 75 years. In the United States alone, law enforcement agencies reported 7,175 hate crime incidents to the Department of Justice in 2017, an increase of over 1,000 from the year before. More than 20 percent of those reported hate crime incidents involved bias toward a person’s sexual orientation or gender identity.

More troubling, we know that these numbers are incomplete. Many law enforcement agencies do not record indicators of bias motivation based on sexual orientation or gender identity in official records of crimes.  Many lesbian, gay, bisexual, transgender, and intersex (LGBTI) people globally also do not report to the police the violence they experience, fearing retraumatization by officers, reprisals from perpetrators, and inadequate responses from the criminal justice system.

In this context, the American Bar Association (ABA) Justice Works Program, a collaboration between the ABA Rule of Law Initiative (ROLI) and Center for Human Rights (CHR), provides technical assistance to civil society and justice sector actors seeking to better respond to bias-motivated violence based on sexual orientation or gender identity. As part of this effort, the Program developed the Justice Works Framework for Enhanced Responses to Bias-Motivated Violence Based on Sexual Orientation, Gender Identity, or Gender Expression (the Framework).

The Framework provides practical, operational guidance for enhanced, cross-sector responses by LGBTI civil society organizations, psychosocial support service providers, and justice sector actors to bias-motivated violence. The document identifies two distinct but overlapping purpose for documenting the indicators of bias. Documentation by both civil society organizations and officials for the purposes of monitoring the typology and extent of violence contributes to evidence- based policy and advocacy.

Documentation by justice sector actors creates an official record that preserves evidence, including the indicators of bias based on sexual orientation or gender identity, which are necessary for a successful prosecution of offenders.

The Framework outlines the concerns various stakeholders should take when documenting bias-motivated violence based on SOGIE. The documentation should maintain a survivor-centric approach while also upholding the rule of law to protect the LGBTI community in a jurisdiction. Most importantly, when documenting indicators for the purpose of monitoring the typology and extent of violence, all personally identifying information should be stripped from any records. Delinking this information protects survivors from reprisals by perpetrators or, in places where homophobia and transphobia are widespread, by police officers. Additionally, managing the expectations of survivors by explaining the purposes of collecting information and the likelihood of a justice sector response can mitigate potential disappointment and thus encourage continued reporting for the purpose of monitoring.

The ideas and concepts in the Framework were developed in conjunction with a diverse group of experts, including advocates for the rights of LGBTI people, psychosocial support service providers, police departments, prosecutors’ offices, judges, ministries of justice, and other legal practitioners. Through the course of the Justice Works Program, ABA staff consulted those on the forefront of cross-sector responses to bias-motivated violence, gaining perspective on what was happening in almost every region in the world.

In November 2017, the Justice Works Program convened 35 experts in Lima, Peru for an Expert Workshop on Comprehensive Responses to Violence. The three-day event involved focused discussions on the three phases of response to violence: immediate, intermediate, and long-term responses. The Expert Workshop provided ABA staff with the substantive information to draft the Framework. The emergent draft received extensive feedback from the program’s expert network, and the Framework was finalized in March 2019.

The document contains 16 illustrative case studies drawn from the consultations and the Expert Workshop. The case studies were provided by courageous individuals and organizations wishing to contribute to global efforts to better respond to bias-motivated violence against LGBTI people. Additionally, the case studies contain approaches that can be transposed and adapted to strengthen responses by civil society organizations, who are developing tools to work better with justice sector actors to protect LGBTI people.

In recognition of the 2019 International Day Against Homophobia, Biphobia, and Transphobia, the ABA partnered with the Human Rights Campaign in an event to  formally  launch the Framework. The Justice Works Roundtable was held in Washington, DC, and featured Judy and Dennis Shepard, who shared the way their son’s tragic death could be viewed in relation to the Justice Works Framework. Cynthia Deitle, a former Federal Bureau of Investigations Special Agent and Civil Rights Unit Chief, spoke of her experience implementing the Shepard Byrd Act upon its enactment in 2009. Finally, Ernesto Zelayandia, a Fellow with the Inter-American Commission for Human Rights, discussed the variance in state obligation to document bias-motivated violence across North and South America.

We hope that the  Justice Works Framework inspires LGBTI people and the organizations that represent them and justice sector actors worldwide to increasingly engage and forge strong, meaningful relationships. We hope that, following the guidance in this Framework, these relationships can become a foundation for justice sector actors to better uphold the rule of law, take into account the interests of LGBTI survivors, and consider the impact on the entire LGBTI community in cases of bias- motivated violence.  To  access the Framework and its accompanying materials, please visit ambar.org/justice works.

For more information from the Program Director, Jordan Long, please email: jordan.long@americanbar.org or JusticeWorks@americanbar.org.

Jordan Thompson Long

Director, ABA Justice Works Program, Senior Counsel, ABA Center for Human Rights, Director, Sexual Orientation & Gender Identity Programs, ABA ROLI