November 08, 2018

What is a Hate Crime? Fighting Bias and Violence Against Transgender Individuals

Sarah B. Markenson

What Is a Hate Crime?

Significant acts of bias and violence against transgender individuals in the United States and around the world still occur even though the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which extended the first-ever federal protections to transgender people in the United States, was signed into law in 2009.

In November 2009, Jorge Steven Lopez was decapitated and set on fire in Puerto Rico because he was a transgender teenager. Police did not investigate the hate crime. The conservative political and religious rhetoric in government has further entrenched the culture of bias and hate against transgender individuals. Even though the U.S. Hate Crimes Prevention Act applies in Puerto Rico, prosecutors have not applied it to charges because “hate” is difficult to prove. Demonstrating part of the problem with enforcement of the Act, Puerto Rican Senate President Thomas Rivera Schatz said in a judicial confirmation hearing, “Change will come to the Supreme Court . . . [It] will defend the rights of the Puerto Rican family, traditional family values, not this twisted [idea of a] family some try to implement through legislation or jurisprudence.” Since Lopez’s murder, there have been more than 20 more murders of gay and transgender people in Puerto Rico.

In sharp contrast, Israel’s Prime Minister Benjamin Netanyahu and Justice Minister Tzipi Livni supported the Lesbian, Gay, Bisexual, and Transgender (LGBT) community after a 2009 shooting at a gay youth center in Tel Aviv. Shelly Yachimovich, a leader of the Israeli Labor Party, also condemned the hate crime and supported the LGBT community: “The pistol did not act on its own, the gunman did not act on his own—what stood behind him was incitement and hatred.” Even the ultra-Orthodox Shas party, a frequent opponent of the LGBT community in Israel, issued a statement condemning the hate crime. Defense Minister Ehud Barak also said that law enforcement authorities must go out of their way to “suppress these atrocious acts and to use an iron fist to bring the perpetrator to justice.”

The FBI defines “hate crime” as any “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, ethnic origin or sexual orientation (actual or perceived gender, sexual orientation or gender identity).” FBI statistics show that in 2012, 1,730 U.S. law enforcement agencies reported 5,796 hate crime incidents involving 6,718 offenses. Of these, 48.3 percent were racially motivated and 19.6 percent resulted from sexual-orientation bias. Within the sexual-orientation bias category, the FBI does not currently keep track of anti-homosexual versus anti-transgender bias—it is all looped into one category.

Cases in the United States

A 16-year-old transgender girl of color identified as “Jane Doe” by a Connecticut court was in solitary confinement in an adult prison, even though she was not convicted of or charged with any crime. Jane has mental health problems because of her traumatizing childhood. A relative raped her when she was eight years old. Her head was bashed into a wall when she was caught playing with dolls. By the age of 12, she was in the custody of the Connecticut Department of Children and Families (DCF), where she was repeatedly sexually assaulted. Eventually, she resorted to selling her body for sex. In January 2014, she assaulted a staffer at a Massachusetts juvenile facility. Her assault was in response to a male staffer approaching her from behind to restrain her. While the male staffer was dismissed, DCF overexaggerated the resulting injuries from Jane’s assault and cited a Connecticut statute that allowed Jane to be transferred to an adult prison if in the child’s “best interest” (see Study of Juvenile Transfers in Connecticut 1997 to 2002, Final Report, Spectrum Associates). Jane was in solitary confinement for over two months, moved to a psychiatric center, and recently moved to a home for delinquent boys. Not only did DCF not protect Jane, it exaggerated Jane’s actions and did not provide adequate mental health services. Jane did not create her own circumstances. She is a victim of a traumatizing childhood. She is a victim of sexual assault. She is a victim of bias.

LGBT people of color are almost two times as likely to experience discrimination and violence as compared to white LGBT victims. Further, transgender individuals are more than three times as likely to experience police discrimination and violence as compared to survivors and victims who are nontransgender, also referred to as cisgender, from the Latin-derived prefix cis–, “on this side of,” an antonym of trans–, “across from” or “on the other side of.” Similarly, in 2012, 73 percent of all U.S. homicide victims were people of color, yet LGBT and HIV-affected people of color represented 53 percent of total survivors and victims, according to the National Coalition of Anti-Violence Programs 2012 Report. Gay men are over three times as likely to report incidents of hate violence to the police as compared to survivors and victims who are not gay men. One conclusion that can be drawn is that many transgender people of color will not report hate crimes or effectively advocate for themselves because the discrimination they have faced leads them to believe that reporting will prove futile.

The story of CeCe McDonald illustrates the statistics. On June 5, 2011, Crishaun “CeCe” McDonald, a 23-year-old transgender woman of color, was walking with four friends past a bar in Minneapolis. A group of Caucasian people began harassing McDonald and her friends by yelling pejorative slurs, including “look at that boy dressed like a girl tucking her dick in.” McDonald and her friends tried to walk away, but a woman hit McDonald in the face with a glass of alcohol, causing injury. When McDonald attempted to leave the scene, one of the men, an ex-convict and member of a white supremacist group, followed her. McDonald took a pair of scissors out of her purse to defend herself against the man. He was stabbed in the chest and died. McDonald was arrested that night and charged with second-degree intentional murder. Even though she was a victim of hate, McDonald pleaded guilty and was sentenced to 41 months in prison and served two-thirds of that sentence in a men’s correctional facility. Unfortunately, there are many cases similar to those of Jane and CeCe that we do not hear about on the news.

How to Be an Advocate

The Supreme Court of India recently ruled that every human being has the right to choose a particular gender. As a result, all state and other legal documents now offer a third gender category: “transgender.” The ruling came despite the Court’s reinstatement of a ban on gay sex in December 2013 after a four-year decriminalization period and after recommending legislative change. While it is important to celebrate this win for the transgender community in India, it also makes the need for local LGBT community support and advocacy efforts in India abundantly clear, since each Indian community has its own bias, hatred, and legal issues. The same holds true in the United States.

When associated with a criminal act, expressions of hate should be admonished, especially when minorities and other vulnerable people are targeted, even though some progressive organizations such as the American Civil Liberties Union and many conservative religious groups are concerned that hate crime laws, particularly those including LGBT people as a protected class, criminalize beliefs and violate freedom of speech.

Some U.S. states and cities are taking pro-active steps to reduce bias and violence against transgender individuals, but certainly more action is needed. On June 16, 2014, President Obama signed an executive order prohibiting LGBT discrimination in federal contracting. While a federal contractor cannot discriminate against LGBT people, federal, state, and local governments still can. Legislative advocacy is still needed to pass the federal Employment Non-Discrimination Act.

Moreover, according to the National Center for Transgender Equality, California, Colorado, Connecticut, Hawaii, Maryland, Minnesota, Missouri, New Mexico, Oregon, Pennsylvania, and Vermont have hate crime laws that include gender identity or expression. But every state should have antidiscrimination laws that include sexual orientation and gender identity or expression.

Additionally, police officers need to be trained on how to respond to and protect victims of hate crimes. In April 2012, the Los Angeles Police Department issued a new policy on treatment of transgender individuals, see, intended to prevent discrimination and conflict. It included the following caveat:

Treat transgender persons in a manner that reveals respect for the individual’s gender identity and gender expression, which includes addressing them by their preferred name and using gender pronouns appropriate to the individual’s gender self-identity and expression.

A similar policy should be implemented and followed in every U.S. city.

Beyond training police officers, juvenile center staff, and mental health professionals, lawyers and policymakers need to advocate for policies that protect transgender individuals from discrimination and violence. Irrespective of personal values or religious beliefs, as lawyers, we need to be aware of these injustices at all levels, from bullying in schools to severe violence against transgender individuals. Not only do we need to be aware and educate ourselves, we need to reach out to our vulnerable communities and help effectively advocate for their rights.

Sarah B. Markenson

Sarah B. Markenson is a real estate and public finance attorney at Armstrong Teasdale. She is also involved with St. Louis Lawyers for Equality, the Out & Equal Workplace Advocates, and the Anti-Defamation League, and she represents nonprofit organizations serving the LGBT community on a pro bono basis.