Tuesday, April 21, 2009

Hate Is On Our Minds

"Pick me up.
Been bleeding too long.
Right here, right now,
I'll stop it somehow.
I will make it go away –
Can't be here no more." — Alone I Break, Korn

Hate appears to be on the radar screens a lot lately. No, this time I'm not talking about the teabaggers or their hate of Obama and all things Democrat.

More to the point, hate crimes and legislation, laws and the prosecution of it are becoming the front-and-center as we prepare for hitting Capitol Hill. Just before the Easter break the Hate Crimes Prevention Act (HR 1913) by Rep. John Conyers (D-MI) was filed in Congress http://thomas.loc.gov/cgi-bin/thomas.

On the one hand, it's good to have something in the House that explicitly states "gender identity." This is better than the alternative of having us out completely.

The problem arises over the quirky definition (kept over from the previous session) in Sec. 7 of the legislation, amending Title XVIII, Chapter 13, Sec. 249(c)(2): For the purposes of this chapter, the term `gender identity' means actual or perceived gender-related characteristics. It defines gender identity as gender-related characteristics, not expanding the term gender identity but redefining it.

As Kathy Padilla noted in her blog to Pam's House Blend: http://www.pamshouseblend.com/showDiary.do?diaryId=9649

"The new definitions can generally be said to cover gender expression but not gender identity. Which in the real world would present the likelihood that gender variant gay, straight and transgender people who don’t medically transition would be covered by the Hate Crimes Bill.... Transsexuals would not be covered."


The redefining of identity to mean characteristics (in this case gender expression) is something that case law has already addressed in Title VII cases holding that expression does not equal identity; in those cases racial and ethnic identity. These were expressions that the plaintiffs associated with their racial and ethnic identities; such as hair styles and the use of their native languages but that might not be considered exclusively associated with those identities. The obverse would be applicable here – expression being covered, but identity being excluded. The history indicates that if expression only is covered in the legislation; unless one can concretely associate an expression with an identity, the identity wouldn’t be covered. It should be obvious - but the definition of gender expression discrimination is that it is based upon gender expression that isn’t associated with one’s identity."
And on a later blog, Kathy added: http://www.bilerico.com/2009/03/bulletproof.php

I followed up and asked if these [national-level organizations] had raised objections to the language in previous meetings and she confirmed that they had. The language hasn't changed since they raised these objections. And no one from these groups has stated that they were convinced their previous objections were groundless. It could just be that they maintain these objections, but won't voice them going forward out of process & political considerations."
"Drafting legislation is a highly skilled art. To be useful, civil rights statutes must be worded carefully. Sloppy or ambiguous language can create unintended loopholes or exclusions that may defeat the purpose of passing a law in the first place. Once a nondiscrimination statute is passed, courts will scrutinize the language very closely. Lawyers representing employers (landlords, businesses, etc.) will do their best to find loopholes and to persuade courts to interpret the law as narrowly as possible.... Individual litigants have won or lost cases depending on how narrowly or broadly a particular court has interpreted this single phrase. To avoid these problems as much as possible, it is a good idea to enlist the help of supportive attorneys and/or legislators who are skilled at drafting legislation, and who can help you anticipate criticisms, misunderstandings, and unintended consequences of language that is confusing, weak, or just poorly drafted." — the National Gay & Lesbian Task Force from their paper entitled "Transgender Equality."

While Mara Keisling of NCTE and presumably Lisa Mottet and other organizations' legal eagles had chance to review and even raised issue with the language (which I'd written about in my March 9 blog), since getting their hands slapped by Wade Henderson of the Leadership Conference on Civil Rights (LCCR) and Rep. Barney Frank they've all been conspicuously mute on the issue. Only recently did NCTE publicly respond, which I reprint from Helen Boyd's blog http://www.myhusbandbetty.com/wordPress/wp-admin/post-new.php:

From NCTE:

Last night, Representative John Conyers of Michigan re-introduced The Local Law Enforcement Hate Crimes Prevention Act of 2009, H.R. 1913. This would be the first-ever federal law to provide protections for transgender people. It is identical to the hate crimes bill passed by the House of Representatives in 2007 and includes the language that transgender advocates requested. It is also the first transgender inclusive bill to be introduced during this Session.

In his comments introducing the bill, Rep. John Conyers stated, "Hate crime statistics do not speak for themselves. Behind each of the statistics is an individual or community targeted for violence for no other reason than race, religion, color, national origin, sexual orientation, gender, gender identity, or disability. Law enforcement authorities and civic leaders have learned that a failure to address the problem of bias crime can cause a seemingly isolated incident to fester into widespread tension that can damage the social fabric of the wider community. The Local Law Enforcement Hate Crimes Prevention Act of 2009 is a constructive and measured response to a problem that continues to plague our nation. These are crimes that shock and shame our national conscience. They should be subject to comprehensive federal law enforcement assistance and prosecution."

Representatives are heading home to their districts for spring recess from now until April 21st. It is vital that you call them in their district offices to urge their support for this critical piece of legislation. Those who oppose this legislation will be active during this time-we need to be as well so that members of Congress are hearing from those directly affected by this legislation. Please take this important step to help address the violence faced by transgender people.


The Local Law Enforcement Hate Crimes Prevention Act, H.R. 1913, would:

Extend existing federal protections to include "gender identity, sexual orientation, gender and disability"

Allow the Justice Department to assist in hate crime investigations at the local level when local law enforcement is unable or unwilling to fully address these crimes

Mandate that the FBI begin tracking hate crimes based on actual or perceived gender identity

Remove limitations that narrowly define hate crimes to violence committed while a person is accessing a federally protected activity, such as voting.


For more information:

Read the specifics about this legislation from the Library of Congress, go to their website and search by bill H.R. 1913....

& That's exactly why I love NCTE: all the info you need to do what you need to do.
So much for noting Mara actually doing the right thing last month. Even Lisa Mottet, who was very hands-on with any proposed legislation and extremely keen on inadequate legislative wording becoming bad law, has been astonishingly silent. The very people who's paid job it is to make us aware of what's legislatively coming down the pike are, as Kathy put it, acquiescing to "process" for "political considerations." As I'd written about in February, this is what Washington has become.

Worse still, there's nothing we can do about it. LCCR's Henderson is already aggravated that the Hate Crimes wording has had to be expanded, most pointedly since it was the gay and especially the lesbian community who impressed upon him the pressing need for expanding the bill to cover atypical gender characterics. This coming after years of rebuffing the transgender community's calls for extending coverage! Reports are that he's of no mind to revisit it again.

And Ol' Barn'? "This is what you get!" is his general thoughts on it. He could not care less about what our concerns are on the subject. Gender expression is certainly covered by definition, meaning his community is now completely protected once it becomes law. Our opposing it gives Barney a delicious bit of irony: "this is what I get for helping them! (even with bad law language) Why should I bother?" Basically, it's all the cover he needs to leave us out of ENDA the minute we oppose it. And besides, he hired a trans man! He's got his "throw down" tranny! As comedian Jeff Foxworthy would say, "...there's your sign...."

I'm sure Barney, HRC and the back-room exclusionist queers are laughing so hard they wet themselves. One thing's for certain: none of these parties can ever look for to us ceasing the protests, or taking every opportunity to slam and embarrass them. Welcome to the wonderful world of dirty politics and crappy law.

"Whether it comes from a despotic sovereign or an elected president, from a murderous general or a beloved leader, I see power as an inhuman and hateful phenomenon." — murdered Italian journalist, Oriana Fallaci

All the while this is playing out, we're also seeing the beginnings of the Angie Zapata murder trial and its barristerial gymnastics by Allen Ray Andrade's defense team, doing what they are paid to do: dazzling the court-watchers by pulling off a logic-defying feat of avoiding conviction at all costs. In theory, the district attorneys and the investigators should have done such a thorough job that such lawyerly twists, turns and double backflips will be pinned dead to rights.

Of course, we all know that nothing is perfect. As the Gwen Araujo case in California showed us, even the most diligently investigated of cases can still snag.

The results there got convictions, but it was less-than-optimal. The DA out there chickened out, ultimately. Worse, we had some in the gay and lesbian leadership out there, who'd sidled up to the Guerrero family to bask in some of the media face-time afterglow, later instructing those of us in the trans community who were involved in the case from day one that the eventual sentences were just (including a seven year stint for the Jason Cazares who likely struck the killing blow)!

Imagine having a standing hate crimes law on the books during a Matthew Shepard and having prosecutors justify this stuff by saying it was panic and settling instead for a seven-year plea bargain. Then imagine the trans community instructing the gay community to be happy about the outcome. The community would be roiling in outrage.

The Zapata trial is going well at the moment. The district attorneys laid out their case quite adroitly in its opening arguments. Of course the Andrade defense team is trying to counter with the trans-panic defense regardless. It appears from initial impressions that the defense is playing a losing hand. However, this is small town Colorado and also the first bill testing their freshly enacted Hate Crimes law. I look forward to a proper conviction and sentence, but I'm also mindful that courts aren't always fair to either ethnic minorities or especially toward transgenders.

"The lies, the hurt, the pain, the hate
Really keep fuckin' with me.
There's no where else to go." — Embrace, Korn

As I'd mentioned in my own state hate crimes testimony a couple weeks ago, not all hate crimes end in murder. Some don't even reach the point of physical conflict, but are extremely unnerving nevertheless. Sarah Anne Vestal dropped me a note about a recent incident she had on the day before my testimony in Austin while she was returning a rental car to the Little Rock airport in Arkansas:

Late yesterday morning, I returned a rental car to National Car Rental at Little Rock National Airport. The attendant, obviously noting that I was a male to female transsexual, forced me to park my car in three different spaces, move my luggage twice, then move the car again before he would provide me a receipt for my car rental. During this time, he referred to me as a “screwed-up man faggot” and used other derogatory male terms even though I was presenting entirely as female. (I am a post-operative transsexual who has lived solely as a woman for years.) When I asked for the manager, he pointed at the person in their key booth in the parking lot. He followed me to that person and when I tried to explain what happened, the original attendant interrupted and threatened to “take the head off the big motha fuckin faggot” if I continued with the story. He then took actions which led me to believe he was going to cause me physical harm such as running up to me and cocking his arm as to hit me. The man in the booth yelled at the attendant to stop, but he then chased me into the airport while screaming more threats of bodily harm. This incident was also witnessed by the National Car customer service woman who had walked out of the desk area. She made no effort to help me with the attendant.

... I went straight to the police area near check-in. The officer who was behind the door listened to my story, looked at me crying, and said he could not do anything since the man did not physically hit me. The police officer told me to go back to the National Car rental area and speak to the manager....

... On the way through security, I stopped and tried to speak to LRPD Officer “Mack” so as to understand why they would not help me. Officer Mack rudely told me that if I did not calm down, he would make sure I would miss my flight home.
While National Car Rental (also dba: as Alamo Car Rental) is on the International Gay & Lesbian Travel Assn. (IGLTA) as a Platinum sponsor for the past two years, they've apparently not bothered with impressing upon their rental associates things like sensitivity, much less professional customer service with GLBT people. In their press release, National & Alamo's parent group Vanguard's International Marketing Manager, Paul Huber, stated “I am pleased to be partnered with a great group as the IGLTA. I am honored to participate in the “Driving Proudly” sponsorship and look forward to the great things to come.”

It doesn't sound like terroristic threats are quite what Vanguard's Huber had in mind. However, it was also equally noteworthy that Little Rock police thought that was no real issue to even bother with. Unless you're actually physically attacked or killed, why should he bother getting his butt up off the stool? That seems to be the general attitude.

Yes, hate seems to be on everyone's mind these days. Will we have some foresight about not revisiting these horrific tragedies and do the proactive thing now? Or will it simply sit stagnating, waiting to fester into something worse?

In explaining his impression of when Texas was going to revisit the James Byrd Hate Crimes bill to expand it to include trans people, Randall Terrell said, "it's probably going to take another tragedy (like Matthew Shepard or Gwen Araujo) before they address this." As MLK said, and as exhibited in actions thanks to LGRL's Dianne Hardy-Garcia and Texas State Sen. Rodney Ellis: "justice delayed is justice denied."

So the question begs: why?

"There are weapons that are simply thoughts and attitudes, prejudices to be found only in the minds of men. For the record, prejudices can kill. And suspicion can destroy. And a thoughtless search for a scapegoat has a fallout all of its own." — Rod Serling (from the episode: The Monsters Have Come To Maple St.)

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