Eric Stanley and Nat Smith, eds
Joey Mogul, Andrea Ritchie, and Kay Witlock
In March 2002, 17-year-old April Mora was brutally attacked near her Denver home. As the authors of Queer (In)Justice explain, two white men jumped the queer woman of color and “used a razor blade to carve the word dyke on her left forearm and R.I.P into the flesh on her stomach.” Mora managed to contact her girlfriend and in turn the police.
Did they search for the attackers? Did they send the bleeding girl to the hospital? No. First they asked whether Mora and her girlfriend had been fighting and if they were on drugs. When she answered no, the police insisted “that she take a polygraph to prove she was telling the truth” and “focused their investigation on a ‘self-infliction of injury,’” despite hospital reports to the contrary. The so-called investigation included ransacking Mora’s home.
In 2006, seven young black lesbians from New Jersey were walking through the West Village when a male street vendor started harassing them, shouting homophobic epithets and chasing them down the street. He became violent, and the women defended themselves, attempting to de-escalate the situation. Although a surveillance video showed the man physically assaulting the women, four of the seven women were convicted of crimes in the incident, with sentences ranging from three-and-a-half to 11 years.
How, in the age of anti–hate crime legislation, were these perversions of justice possible? How is it that victims of hatecrimes received punishment instead of assistance? These are the implicit questions being answered by Queer (In)Justice and Captive Genders, two recent books about interactions between queer and trans people
Indeed, much of the violence done to queer and trans people happens at the hands of state enforcers — be they police, immigration officers, or prison guards. Police response relies on “criminalizing archetypes framing transgender and gender nonconforming people as inherently deceptive,” as outlined in Queer (In)Justice. In a classic reframing of victims as instigators, trans and gender-nonconforming people are often accused of somehow “tricking” their attackers by living in their true genders or expressing their genders outside a male-female binary. In addition to April Mora’s story, the authors cite a decade-long study in Minnesota that documented verbal and/or physical harassment of queer and trans victims in 32 percent of police responses to their calls for help. The police thus routinely perpetuate the cycles of violence they are mandated to stop.
This reality seems to go unnoticed by mainstream LGBT rights organizations, whose recent accomplishments in the marriage and military departments have them turning to anti–hate crimes legislation. Groups like Empire State Pride Agenda in New York, and the national Human Rights Campaign just want to prove that gay folks are like everyone else: They dwell among us, and they love guns and a good party too. With DADT abolished and New York having passed marriage equality, the Gender Expression Non-Discrimination Act (GENDA) has become a top priority in the mainstream LGBT policy world. GENDA, which would add gender identity and expression as protected categories under New York human rights law, would also make violence against gender-nonconforming people a hate crime.
The logic of anti–hate crime legislation is seductively easy to support: Protect victims, legitimize their existence, and set the full force of the criminal legal system against their attackers. President Obama was almost universally lauded in 2009 when he added gender identity and expression to the federal hate crimes act, originally passed in 1969 to counter attacks on people of color. For many queer and trans people, the idea of state validation of their lives and rights is the fulfillment of a lifetime of struggle. When Obama signed the law, those assembled must have been overjoyed to hear the President say, “No one in America should ever be afraid to walk down the street holding the hands of the person they love.” Who could disagree?
Unfortunately, Obama’s words betray a fundamental ignorance about how hate crime legislation plays on the ground. To him, and to the civil rights lobbyists at HRC, a change in the law will mean that their core constituency of affluent white LGBT people will feel better in the wake of tragedies like Matthew Shepherd’s murder. The problem is that hate crime legislation is actually a major obstacle to our shared goal of ending hate violence against everyone. These laws do nothing, either in theory or practice, to prevent identity-based violence, create community-based structures of accountability, or in any other way change the way criminalized behaviors are treated in this country.
That’s a big problem. Write Mogul, Ritchie, and Whitlock: “For many LGBT people, and particularly LGBT people of color, immigrants, youth, and criminalized queers, reliance on the police and criminal legal system is simply not an option because of the risk of adverse consequences.” Whether Obama talks about it or not, the criminal legal system above all targets people without class or race privilege, primarily poor people of color. Instead of holding perpetrators accountable, and offering assistance to historically victimized groups, each step in the legal system — the laws, the police, the courts, and the prisons — criminalizes their behavior, assumes their guilt, and sends them into cages. In Captive Genders, Morgan Bassichis, Alexander Lee, and Dean Spade write of an erroneous focus on “individual behaviors and bad intentions rather than widescale structural oppression.”
Throughout Queer (In)Justice and Captive Genders, examples abound of trans women followed home after late work shifts by cops assuming they are sex workers, of police assuming queer victims were perpetrators, and of genderqueers being cuffed and cavity-searched, despite having been charged with no crimes. It’s little wonder then that 25.4 percent of trans women and 19.1 percent of cisgendered queer women did not report hate violence to the police, as the National Coalition of Anti-Violence Programs’ (NCAVP) 2010 Report on Hate Violence Against Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Communities notes. When queer or trans people of color report they have been victims of hate crimes, the police refuse to classify it that way in 25 percent of cases, compared with 6 percent for white queer or trans victims. Police response to sexuality or gender-expression violence is clearly subject to the same racism and classism that affects law enforcement in general.
Consider the groups that have openly opposed GENDA in New York City: The Sylvia Rivera Law Project, FIERCE, Queers for Economic Justice, the Peter Cicchino Youth Project, and the Audre Lorde Project. Unlike the institutions touting GENDA, these groups are community-based and member-run, and they deliberately privilege the voices of young people, trans people, people of color, and poor people. Their members come from the communities already targeted by police violence and are thus best situated to understand the potential repercussions of hate-crimes legislation.
These provisions serve as mandatory minimum prison sentences upon conviction, nothing more. They have long existed for various extenuating circumstances, from prior convictions to the location of the crime. As evidenced throughout the country, deterrence by harsh punishment accomplishes exactly nothing to reduce violent crime. In New York, for example, a hate crime conviction comes with an enhancement equivalent to the next worst class of crime, resulting in at least a year-and-a-half-longer minimum sentence and up to eight-year higher maximum. As it stands, the U.S. doles out the longest sentences of any country on the planet. A convicted burglar in this country serves more than a year on average, compared with seven months in England or five months in Canada.
Not that such trivialities have stopped 40 years of “tough on crime” politicians from doing their damnedest to ensure that the U.S. imprisons more people than were held in Stalin’s gulags. The members of the anti-GENDA coalition know well that the U.S. accounts for less than 5 percent of the world’s population, but we have 25 percent of the world’s prisoners. One out of every 15 black men is incarcerated, as is one out of every 36 Hispanic men. According to a recent NYPD study, 85 percent of people stopped and searched by NYPD officers in 2010 were black or Hispanic men, though they make up only a combined 45 percent of the city’s population. Stop-and-frisk cast a wide enough net last year to stop the equivalent of the entire population of Wyoming without probable cause. Data about pre-incarceration income levels is hard to come by, but studies show that past incarceration is a major obstacle to employment and access to services. Why would we want to empower a system so irrevocably broken?
We have a criminal justice system which is only too happy to hand out exceptionally long sentences to an exponentially growing proportion of people of color and poor people. Never mind that the prisons are so overcrowded already that federal courts have deemed conditions “cruel and unusual.” Supporting hate crime enhancements ignores the danger law enforcement represents to many queer and trans people of color, putting them at risk so that others can imagine their world is safer and more tolerant.