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† The Criminal InJustice Series is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI.Criminal Injustice is published every Wednesday at 6 pm CST.

Anti-Transgender Violence: How Hate-Crime Laws Have Failed

by Victoria Law

On the morning of June 5, 2011, a 23-year-old African-American transgender woman, Chrishaun McDonald, and her friends were walking down Lake Street in Minneapolis. As they passed Schooner Tavern, Dean Schmitz, a 47-year-old white man, began shouting racial slurs at McDonald, asking, “Did you think you were going to rape somebody in those girl clothes?” Schmitz and two other bar patrons then attacked McDonald.

During the attack, glass was smashed into McDonald’s face and Schmitz was killed. McDonald was arrested and charged with second-degree murder.

The details of what happened are still not clear. However, considering the widespread discrimination, harassment and violence that transgender people face every day in the United States, McDonald and her friends had ample reason to fear that Schmitz’s attack could lead to serious injury, if not death. A recent report by the National Coalition of Anti-Violence Programs found that 50 percent of LGBT (lesbian, gay, bisexual and transgender) murders in 2009 and 44 percent of LGBT murders in 2010 were of transgender women. This year, does not seem to be a safer year for transgender people either:

In January 2011, in Minneapolis, a transgender woman named Krissy Bates was strangled and then stabbed to death by her new boyfriend.

In February, the body of an African-American transgender woman, Tyra Trent, was found in an abandoned house in Baltimore.

In April, Chrissy Lee Polis, a 22-year-old white transgender woman, was brutally beaten by two black teenage girls at a McDonald’s in Baltimore, Maryland. The vicious attack made news only because an employee filmed and posted it online. The video captured not only the assault, but the lack of intervention from both employees and other patrons. While the attack on Polis may not have been fully motivated by her gender identity, bystanders’ unwillingness to intervene was.

Given these recent attacks and the lack of public outcry, or even sympathy, one can understand why McDonald and her friends feared for her life when attacked that morning.

Trying to Legislate Away Hate

Following the attack on Polis, Equality Maryland, an LGBTQ (lesbian, gay, bisexual, transgender and queer) advocacy group, called on the state attorney general to prosecute the assault as a hate crime based on gender identity.

Some anti-violence advocates, however, argue that hate-crime charges are more likely to be sought by the state in cases where black people have hurt white people, further bolstering the disproportionate number of black people in prison. The attack on Polis originally received such widespread attention in part because of the racial dynamics: the attackers are black and Polis is white, prompting the state’s attorney to consider hate-crime charges based on race. In Minneapolis, the Trans Youth Support Network (TYSN) noted that, while one of McDonald’s assailants had a swastika tattoo and the attack was clearly motivated by both her race and gender identity, the state is not prosecuting the white woman who smashed glass into her face.(1)

Hate-crime legislation also has not stopped the endemic violence against transgender people. Just weeks after Obama signed the Matthew Shepard and James Byrd Hate Crimes Prevention Act, the country’s first gender identity and sexual orientation inclusive hate-crimes bill, two young queer people of color were murdered, one in Maryland, the other in Puerto Rico. In the wake of both the Act and the killings, two LGBT anti-violence organizations, the Audre Lorde Project in New York and Communities United Against Violence in San Francisco, issued a statement pointing out that the bill provides no funding or resources to actually prevent violence. Instead, it reaffirms the idea that safety is realized by more police and more imprisonment, allocating five million dollars to expand the powers of local police and the FBI to investigate and prosecute hate violence, while ignoring the violence perpetrated by law enforcement. Despite hate-crime laws, the combination of transphobia and racism makes transgender people of color more likely to encounter police indifference when reporting violence, and three times more likely to experience hate violence from police than white transgender or non-transgender people of color. The National Coalition of Anti-Violence Programs found that 8 percent of hate violence against transgender people of color in 2010 was committed by police officers.

Transgender people often face severe discrimination, resulting in a lack of resources and opportunities and placing them further at risk for violence. Although 14 states and Washington, DC, have some measure of legal protection for transgender people against discrimination, this legislation has not decreased actual discrimination: Although New York City has had anti-discrimination laws since 2002, a 2007 study by the Sylvia Rivera Law Project, a legal aid organization for transgender, transsexual, intersex and other gender non-conforming people in New York City, found that transgender and gender non-conforming people suffer pervasive discrimination in housing, employment, health care, education, public benefits and social services. This lack of access pushes a disproportionate number of transgender youth and adults into criminalized means of survival, such as sex work, drug sales or theft. The study also found that, because of entrenched social stigma, transgender people encounter pervasive violence and physical brutality from family members, community members and police. Widespread discrimination and violence often prevent transgender people from accessing shelters, foster care, Medicaid, public entitlements and social safety nets, which would enable them to survive without turning to illegal activities. As a result, transgender people are disproportionately poor, homeless, criminalized and imprisoned.

New York City is not the only anomaly. Although San Francisco has had anti-discrimination laws since 1994, a 1997 survey by its Department of Public Health found that more than 30 percent of transgender women had spent time behind bars during the preceding 12 months. While in prison, transgender people experience further violence, from being placed in prisons according to their birth-assigned genders and/or genitalia, to rampant verbal, physical and sexual violence from both staff and other prisoners. TYSN Director Katie Burgess noted that McDonald was placed in solitary confinement in a men’s jail because of her gender identity.

Even when transgender people are offered alternatives to incarceration, they encounter difficulties finding facilities willing to recognize and respect their gender identity. In 2008, Sabire Wilson, a transgender woman arrested for drug possession in New York City, accepted a plea bargain to enter a drug treatment center instead of prison. She chose Phoenix House because it purported to be gay and lesbian friendly. However, because Wilson’s assigned gender is male, the admissions counselor agreed to admit her so long as she used the male dormitories and bathroom. Wilson agreed as long as staff allowed her to dress and present herself as a woman.

In January 2009, a senior counselor invited Wilson to participate in a new group for women “where clients could discuss gender issues associated with addiction.” When some of the women complained about her participation, Phoenix House Director Sydney Hargrove allegedly told her that the counselor should have put her in a male group instead. Hargrove then initiated procedures that ultimately resulted in Wilson’s removal from the treatment center. Although Wilson had excelled in the Center’s career training program, had been made a “resident structure senior coordinator” and 38 men and women in her unit signed a petition calling her “a valued member of this unit” who had “earned the respect of the community,” Hargrove informed Wilson that the New York district attorney would discharge her to the court if she didn’t find another program to accommodate her.

Going Beyond Hate-Crime Legislation

Some LGBT groups recognize that, rather than rely on increased policing and imprisonment, they must create their own tools and strategies to address and prevent violence. In Minneapolis, understanding that discrimination and violence prevents many transgender youth from accessing social services. TYSN works with service providers to educate them about transgender issues, particularly those affecting transgender youth. By promoting awareness and education, TYSN seeks to increase safety for transgender youth in schools and social service structures, such as health care clinics, shelters and social work agencies. In addition, building awareness enables social workers and service providers to recognize and address violence and other harm when it does occur. According to Katie Burgess, this educational work builds “slow-moving but broad-reaching systems of accountability where those most affected have a voice.”(2)

In New York, members of the Audre Lorde Project formed the Safe OUTside the System Collective to address street and state violence (including increased police harassment and brutality). In 2007, the collective launched the Safe Neighborhood Campaign, inviting community members to become involved in promoting personal safety. The campaign works with local businesses and other public spaces to provide safe havens from sexist, homophobic, transphobic and racist language, behavior and violence.

In the first phase of the campaign, neighborhood public spaces – such as restaurants, businesses and community groups – agree to visibly identify themselves as safe havens for those threatened with or fleeing from violence. In the next phase, the campaign incorporates an educational component. Members of the campaign train the owners and employees of the designated safe spaces, as well as other community members, on homophobia, transphobia and ways to prevent violence without relying on law enforcement.(3)

The model of the Safe Neighborhoods Campaign is one that can be replicated in other cities and by other businesses. It raises the question of what would have happened if the McDonald’s in Baltimore had a safe space/no harassment policy, and if its employees had been trained to recognize and de-escalate situations before they became violent. As a Maryland-based advocate stated, shortly after the attack on Polis, “The two girls charged with the crime are in dire need of an education. Clearly they know nothing of sex and gender and have been taught that violence is acceptable.” We can also ask what would have happened if the bartenders at Schooner Tavern had been trained to recognize and de-escalate situations. Would McDonald have been attacked? Would Schmitz have been stabbed?

Having tools and strategies to address, if not prevent, violence before it occurs is more effective than figuring out appropriate responses in the aftermath of trauma. Rather than advocating for greater punishment after harm has been committed, projects like TYSN and the Audre Lorde Project’s Safe Neighborhoods Campaign organize communities to prevent violence before it occurs.

Footnotes:
1. Interview with Katie Burgess, executive director of Trans Youth Support Network, August 24, 2011.
2. Interview with Katie Burgess, August 24, 2011.
3. Safe Neighborhood Campaign.

Originally Published at truthout.org under a Creative Commons Attribution-Noncommercial 3.0 United States License.

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