Monday, April 06, 2009

Transsexuals Not Covered In Hate Crimes Bill

Back on Feburary 25, 2009 Kathy Padilla wrote a post over at Pam's House Blend titled "Hate Crimes & ENDA: Bad Bills Come and Bad Bills Go". When it came out I really thought it would be one of those explosive posts that rocked the community down to the bone. She said:

"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 (and ENDA if it imports the language). 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."

In the interest of disclosure, the Title VII cases Padilla speaks of are Rogers v. American Airlines (which said that the "Airline rule prohibiting employees in certain employment categories from wearing all-braided hairstyle did not discriminate on basis of race, since policy applied equally to members of all races and plaintiff did not allege that all-braided hairstyle was one used exclusively or even predominantly by black people") which and Bivens v. Albuquerque Public Schools (which said that "Sagging is not necessarily associated with a single racial or cultural group, and sagging is seen by some merely as a fashion trend followed by many adolescents all over the United States")

Padilla wrote a follow up post at Bilerico called Bulletproof saying:
"I followed up and asked if these groups 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. It would be helpful for those groups having the greatest credibility with the trans communities to speak to the issue. Process shouldn't trump product where our rights and possibly our lives our concerned. It's precisely because we're not bulletproof that the language must be.

One of the reasons given by some in DC for the differing definitions in ENDA & Hate Crimes of gender identity & expression is that the bills come from two distinct areas of law - employment & criminal. We discussed this and Ms. Falo confirmed that there are no differences in these two spheres or in case law that would require different language or make one definition preferable in the criminal arena but less adequate in the employment sphere. She noted though that the legislative processes differed as the bills originated in separate committees."
The "Ms. Falo" that Padilla speaks of is a legislative lawyer working for Congressman Barney Frank. You'd think with such a bombshell of a post, that there would be some kind of response. But the silence has been deafening.

The importance of the language in HR. 1913 can't be overstated. The Task Force wrote in their PDF titled "Transgender Equality"
"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. In the context of federal laws that prohibit sex discrimination, for example, literally hundreds of pages of court decisions have been devoted to interpreting the three little words “because of sex.” 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. This doesn’t mean that you have to relinquish all control to legal 'experts.' But it does suggest that once you know what you want your statute to accomplish, it makes sense to consult or collaborate with folks who have the knowledge and the skills to draft a strong, carefully worded law that will afford as much protection as possible.
A PDF put out by NCTE states:
"Lawyers experienced with writing and enforcing laws that protect transgender people have worked to ensure that the language in this bill includes people of all gender expressions and identities. Crimes against people across the gender spectrum would be addressed by this bill."
But Arizona attorney Abigail Jensen echoes my concerns with her remarks concerning H.R. 1913 on the EQualityGiving blog:
"I recognize that the language in the Hate Crimes Bill was approved by both Houses of Congress in 2007. However, having separate definitions of the same term in federal law invites unnecessary litigation over whether that term is intended to have a different meaning in the Hate Crimes Bill than everywhere else. In addition, there is some concern that the definition in the Hate Crimes Bill is intentionally more narrow than the definition in HR2015 and that it excludes those who have physically transitioned to their affirmed gender. In light of these concerns, the political advantages of using the definition approved in 2007 do not justify the use of different definitions."
The murders of Angie Zapata, Gwen Araujo, Chanel Pickett, and Deborah Forte would likely not be considered hate crimes today, under this legislation. Defined narrowly, these women were not murdered for their "characteristics", but their genitals or genital history. The murderers used (or in the case of Zapata, is using) the trans-panic defense, not the victims characteristics.

Using the sloppy wording of this legislation, a reasonably smart defense attorney will use this crack to promote the use of the trans-panic defense. While NCTE states that "Lawyers experienced with writing and enforcing laws" helped write this bill, I've yet to see of any of these "experts" come out publicly to correct "errors" by me or Padilla in this post. I welcome that because I'd love to be wrong. But the consequences of this bill will have long term effects on the ability to prosecute hate crimes against transgender people. A bad hate crimes bill is worse than no bill at all. Well, except if you're running a non-profit business and are looking for a win at all costs. Then it's a win/win. You can claim victory and ask for more money because of the good work you do. The losers will be the victims and their families... and justice.

cross posted from The Transadvocate.


Abby said...

Marti, I don’t have time to respond to this in detail, but do feel the need to correct the misimpression given by your reliance on my comment on the EQualityGiving blog to support your position.

I do NOT, in fact, think that the differences in the definitions of “gender identity” in the hate crimes bill and ENDA presents any danger that some segment of the transgender community will be left out if the definition in the hate crimes bill is retained in that bill and/or substituted for the current definition in ENDA, as you and Kathy Padilla believe. I also don’t believe that the cases you and Kathy are relying on make the distinction between “identity” and “characteristics” that you and she claim.

To understand my comment on EQualityGiving’s blog, you need to understand the context. EQualityGiving had civil rights attorney Karen Doering draft an omnibus bill that would combine all the current proposals for correcting those areas of federal law where equal rights are denied to LGBT people, e.g. ENDA, DOMA, DADT, etc. That bil, of course, has NO chance of even being introduced in Congress, let alone passed and enacted into law. Thus, in the context of this “pie in the sky” proposal, I felt it worthwhile to point out what I see as an extremely minor risk that the difference in the definitions between the two bills could lead to unnecessary (but ultimately unsuccessful) litigation and the concern shared by some (NOT including me) that the definition in the hate crimes bill is narrower than the one in ENDA. I, therefore, suggested that their proposal be amended to use the ENDA definition in the hate crimes bill, a suggestion which they adopted in their March 21 version of their omnibus bill. The way I saw it, as long as we were asking for the moon, why not ask for the sun and the stars too? In other words, all other things being equal, in the law, it’s always preferable to wear both a belt AND suspenders, although in practice one or the other would be sufficient.

However, I want to make clear to you and your readers that I do NOT believe that the differences in these definitions presents any real danger that the protections we seek under either ENDA or the hate crimes bill will not include ALL transgender and other gender variant people. Therefore, I also believe that there is no reason to expend any of our already limited political resources on this issue and that we should, instead, focus all of our energy on supporting passage of the hate crimes bill in the form adopted by both houses of Congress in 2007. (It is my understanding that the bill introduced last week by Rep. Conyers (HR1913) is identical to the 2007 bill (HR2015 - The tett of HR1913, however, is not yet available on the Library of Congress’ website. When it is, you will be able to find it here:

Abigail “Abby” Jensen

(Cross-posted from Marti's original post:

helen_boyd said...

thank you so much for posting, Abigail.

Abby said...

The discussion on the issues raised by this post is continuing on Marti's site - I urge those who are interested, and especially those who believe that Marti's arguments raise real ground for concern, to go there to follow that discussion

proudprogressive said...

I second that thank you Abigal of course we cannot be too careful about loop holes in the legal language - however at this juncture to see a "bad" trans bill is just unlikely - after all we have as Barney Frank said , and thanks to all the NCTE attorneys and others -we got a good fully inclusive bill. (now we have to get it passed and i do believe we will see it passed for reasons i won't go into now but i believe our time has come)

Why even introduce it, if its not going to cover all people on the gender expression and identity spectrum. Like others i await the fully inclusive ENDA and the reapeal of DOMA and DADT.

Viva la Raza !

Marti said...

Helen, one of the bad things about posting to this blog is that I never get a notice when there are comments!

@Abby, as I said at the original post, the preferred language is more comprehensive and I've shown examples how "gender" can be turned on its head (In Kansas for example, re Estate of Gardiner) and in many other places (especially title 7). As I said on Ethan St. Pierre's show, if there's better language then, why not use it? There's NO reason not to. The language is ambiguous, because there is a definitional difference between sexual and gender characteristics, that any good attorney or Justice Department (like Bush's) could legally justify not enforcing the provisions for transsexual people in HR1913. And if you say there's a difference in legal and employment law, then you need to speak with Barney Frank's legislative attorney, because that's not what they told Kathy Padilla.

@proudprogressive First of all, NCTE only employs 3 or 4 people at the moment, and none of them are attorneys. Secondly, not one attorney who helped craft this bill is willing to stake their reputation and come out publicly and say this bill is fully inclusive. This bill will fully cover gender variant people (because of gender characteristics), but not transsexuals (who are generally murdered for their sexual characteristics).

Abby said...

Marti, you say "if there's better language then, why not use it? There's NO reason not to." First, as I've attempted to demonstrate on your blog, the language in HR 1913 isn't necessarily better than the language used in ENDA. That language may make you more comfortable, but I don't believe that either the court's or the prosecutors charged with enforcing federal criminal law will see a material difference between them.

Second, you wonder "why not change the language?" But I want to know, "why bother?" I think there are plenty of reasons not to fight a battle that, in the end, will make no difference in the protections that we seek and can only serve to divide the support for HR 1913 and potentially delay its passage, which would be a disaster for all of us.

I also disagree that "there is a definitional difference between sexual and gender characteristics," or, at least, that any such difference lessens the scope of coverage available under HR 1913 compared to that available under ENDA. Yes, sex and gender are different. More importantly, however, sex and gender are clearly related, despite any such differences. How? Although sexual characteristics, such as genitalia, do not define gender, they are nonetheless a factor that even those like us who know they are different consider when thinking about gender. They are, therefore, by definition, "gender-related," which is the operative term in the definitions in both HR 1913 and ENDA.

Why the insistence that only the people who drafted the language of HR 1913 can speak authoritatively on whether that bill is "fully inclusive?" I wonder whether this isn't simply a convenient argument for you because you're relatively sure that those people won't come forward to satisfy your curiosity. Besides, HR 1913 is identical to the bill that was introduced in 2007 (HR 1592) and, as time passes, the opinions of the original drafters become more and more irrelevant. Plus, when the time comes for the courts to decide this issue, the opinions of the people who actually penned the words will be irrelevant. The only things that will matter will be the language of the bill itself, which isn't ambiguous, and, perhaps, the statements made by members of Congress on what they believe the bill covers when they vote on it.

Lastly, I can think of any number of people whose views on this issue would be equally, if not more, persuasive for me, and, I suspect, you, as well. For example, have you asked Shannon Minter for his opinion? I'll wager that he too will tell you that your concerns about the language in HR 1913 are unjustified. If not Shannon, whose opinion, other than the bill's author(s) will you find worthy of belief? Name them and let's get them involved in this debate, so that it can be laid to rest once and for all, and we can join together in getting HR 1913 passed and signed into law ASAP.