[*PG447]WHICH BODIES COUNT WHEN THEY ARE BASHED?: AN ARGUMENT FOR THE INCLUSION OF TRANSGENDERED INDIVIDUALS IN THE HATE CRIMES PREVENTION ACT OF 1999
DANGEROUS LIAISONS: BLACKS, GAYS, AND THE STRUGGLE FOR EQUALITY. Edited by Eric Brandt. New York: The New Press. 1999. Pp. 312.
On average, one transgendered individual is reported murdered every month. This high statistic does not account for hate crimes against transgendered individuals that are either not reported or are misrecorded as crimes motivated by sexual orientation bias. In this Book Review, the author explores this epidemic of violence against transgendered individuals. Juxtaposing two prominent hate crimes—the murders of Matthew Shepard in Wyoming and Brandon Teena in Nebraska—the author exposes the critical differences between hate crimes against transgendered individuals and hate crimes based on sexual orientation and the disparity between the institutional responses each receives. The author argues that these differences warrant the conclusion that hate crimes against transgendered individuals should not be left to fall under the “actual or perceived sexual orientation” provision of the Hate Crimes Prevention Act of 1999, but can and should receive express, individualized attention under the Act’s “actual or perceived gender” provision.
Stunned and frightened by the crowd’s unexpected fury, the police, at the order of Deputy Inspector Pine, retreated inside the [Stonewall Inn] bar. Pine had been accustomed to two or three cops being able to handle with ease any number of cowering gays, but here the crowd wasn’t cowering; it had routed eight cops and made them run for cover. . . . [C]heerleaders led the crowd in shouts of “Gay power[,”] [*PG448]and chorus lines [of drag queens] repeatedly belted out refrains of “We are the girls from Stonewall.”1
The Stonewall riots occurred in the early morning hours of June 28, 1969.2 Many historians laud the riots as the event that transformed gay and lesbian social existence into the gay and lesbian civil rights movement.3 Indeed, every June, gay pride parades commemorate Stonewall in cities across the United States.4
It is notable that the primary actors in the Stonewall Riots were transgendered.5 This fact testifies to an initial connection between transgenders6 and gays7 at the inception of the visible gay and lesbian civil rights movement.8 However, the discussion of this historic con[*PG449]nection is noticeably absent from much of the discussion about, and between, the transgender and gay civil rights movements today.9
Editor Eric Brandt partially and perhaps unintentionally resurrects the historic connection between these groups in Dangerous Liaisons: Blacks, Gays, and the Struggle for Equality.10 In arguing that one of the most powerful connections between blacks and gays11 is that both groups suffer disproportionately from hate crimes,12 Brandt notes that gays are victims of violent attacks more often than any other group of individuals in the general population.13
In this analysis, however, Brandt fails to make any distinction between the rates of violence against gays and the rates of violence against transgenders.14 This is a peculiar omission given that violence against transgendered individuals sparked the Stonewall Riots and, arguably at least, a visible gay and lesbian movement.15 Thus, in light of the shared history of violence between transgendered individuals and the gay and lesbian movement, Brandt’s analysis of the violence against gays is incomplete.16
In this Book Review, I propose to pick up where Brandt left off.17 Specifically, I explore violence against transgendered individuals and the important ways in which the expression of this violence belies animus that is both similar to and different from the animus that motivates hate crimes on the basis of sexual orientation.18 I hope to show that, although both transgenders and gays share a historic connection [*PG450]to violence, the contemporary transgender experience with hate crimes is unique in crucial ways and necessitates an independent discussion as well as individualized protection.
The context for this discussion is the Hate Crimes Prevention Act of 1999 (HCPA).19 Thirty years after violence against transgendered individuals sparked the gay and lesbian movement, the HCPA sits in Congress.20 The HCPA would grant coverage, for the first time, on the basis of real or perceived sexual orientation and gender.21 My goal is to show that hate crimes against transgendered individuals should not be left to fall under the rubric of the sexual orientation provision but rather can and should fall under that of real or perceived gender.22 If the interpretation of this legal category included the transgender experience with violence, transgendered persons would receive two important benefits: the first signs of uniform protection, and the first federally legislated indication that violence against them is unacceptable.23
Part I of this Book Review will provide the tools necessary for this discussion. I will explain the conflation of sex and gender, gender and sexual orientation, and transgenderism and sexual orientation.24 This discussion will demonstrate that transgenderism and sexual orientation are not only independent characteristics, but that each can and does occur without the other.25 In Part II, I will compare the accounts of two prominent hate crimes, the murders of Matthew Shepard and Brandon Teena, as a vehicle to explore the critical differences between hate crimes that occur because of an individual’s sexual orientation and hate crimes that target transgendered individuals for transgressing gender norms.26 Finally, in Part III, I will discuss the historic exclusion of transgendered individuals from key hate crimes legislation, the language of the pending HCPA that can and should apply [*PG451]to transgendered individuals, and the debate that surrounds this possible application.27
Sex generally refers to an individual’s anatomical/biological status28 as a male or a female, while gender typically refers to an individual’s social role as masculine or feminine.29 Implicit in these definitions is the assumption that sex determines gender, that there are only two biological sexes, and that there are therefore only two genders.30 That is, an individual born biologically male will display masculine gender behaviors, while an individual born biologically female will display feminine gender behaviors.31
The problem with these assumptions is that they are just that—assumptions.32 According to Julie Greenberg, Professor of Law at Thomas Jefferson School of Law, “A binary sex paradigm does not reflect reality.”33 While the categories male and female, masculine and feminine, occupy two binary poles, sex and gender range a spectrum.34 In this view, sex does not determine gender; rather, gender is the per[*PG452]formance of one’s sex.35 Millions of Americans display gender behaviors that do not comport with their sex.36 These individuals fall somewhere on Greenberg’s spectrum between, rather than at, the two poles.37
Perhaps the most cogent challenge to the assumption that sex determines gender comes from the transgender population.38 Transgenderism is the experience of incongruity between an individual’s sex and gender.39 This experience can range from exhibiting gender behaviors that are outside the scope of what is socially permissible for one’s sex, to being physically gender ambiguous, to having a gender orientation40 that aligns with that of the “opposite sex”41 coupled with a belief that one’s sex is therefore incorrect.42 Because transgenderism is a spectrum of experiences, “transgender” is the umbrella term that encompasses cross-dressers, transvestites,43 androgynes, intersexuals, transsexuals, and those who simply mix and match elements of masculine and feminine gender roles.44
Not only is sex assumed to determine gender; it is used to presume sexual orientation.45 The presumption is that all individuals are heterosexual.46 That is, all individuals are attracted to, and only to, members of the opposite biological sex.47
Part and parcel of this presumption is the assumption that gender indicates sexual orientation.48 The argument proceeds as follows: if sexual orientation is based on sex, and sex determines gender, then gender behavior and presentation indicate sexual orientation.49
The most obvious problem with these assumptions again occurs in the context of the transgendered experience.50 Because the transgendered experience is by definition an experience of incongruity between biological sex and gender behavior, gender, in these cases, is not predictive of either sex or sexual orientation.51 Since gender is not predictive of sex or sexual orientation in the case of transgendered individuals, gender cannot be understood as an infallible indication of sex and sexual orientation.52
However fallible these assumptions, the fact remains that gender is used as an indication of sex and, concomitantly, of sexual orientation.53 In particular, in the hate crimes context, individuals with incongruencies between their gender behavior and their biological sex [*PG454]are frequently targets for attack.54 However, while the motivation for these attacks may be the victim’s perceived sexual orientation, it may also be the victim’s gender behaviors in and of themselves.55
Perceived sexual orientation was undoubtedly the impetus for events that transpired on October 6, 1998, in Laramie, Wyoming.56 That night, at the Fireside Bar, Aaron McKinney and Russell Henderson met, kidnapped, and killed the frail, 105-pound, five-foot, two-inch-tall Matthew Shepard.57
According to McKinney’s taped confession, McKinney and Henderson concocted their plan to kidnap Matthew while in the bar’s bathroom.58 They decided that if they pretended that they were gay, they could lure Matthew, whom they evidently assumed was gay, into their truck and rob him.59
Once outside the bar, however, their plan took a deadly turn.60 The two pistol-whipped Matthew and drove him out to a remote country road.61 They then lashed him to barbed-wire fence and took his shoes, ensuring that if he broke free, he could not walk back in the sub-freezing temperatures.62
Before they left, they asked Matthew if he had seen the license plate of their truck.63 When Matthew read the numbers back, McKinney struck him with the pistol three more times, leaving him unconscious.64 Eighteen hours later, a passing cyclist found Matthew tied to the fence, unconscious but still alive.65 He never regained conscious[*PG455]ness.66 Five days later, on October 12, 1998, twenty-one-year-old Matthew Shepard died.67
McKinney and Henderson targeted Matthew because he was gay.68 McKinney and his former girlfriend both testified that McKinney and Henderson specifically planned to pose as gay men in order to coax Matthew into their truck, implying that they suspected that he was gay.69 Additionally, by basing his defense to the crime on the admission of an uncontrollable reflex reaction to Matthew’s sexual orientation, the so-called “gay-panic” defense, McKinney all but admitted that his motivation for hurting Matthew was Matthew’s sexual orientation.70
Similar to Matthew Shepard, Brandon Teena71 was the five-foot, four-inch, 105-pound, twenty-one-year-old victim of a brutal murder.72 Unlike Matthew, however, Brandon’s killers did not target him because his gender expression led them to believe he was gay.73 Rather, Brandon’s gender expression in and of itself made him the target of their brutal wrath.74
Brandon Teena was transgendered.75 Although he was anatomically female, he referred to himself as a male, dressed in men’s clothing, and dated women.76 According to David Bolkovac, who counseled [*PG456]Brandon at the University of Nebraska in 1992, “[Brandon] believed [he] was a man.”77
Trouble began for Brandon when he moved to Falls City, Nebraska in October, 1993, leaving Lincoln, Nebraska, and a trail of forged checks behind.78 Soon he began dating Lana Tisdel, through whom he met and became friends with John Lotter, Tisdel’s ex-boyfriend, and Lotter’s friend, Marvin (“Tom”) Nissen.79
On December 15, Brandon was arrested for forging additional checks in Falls City.80 After contacting the authorities in Lincoln, the Falls City Sheriff’s Department learned that Brandon Teena’s legal identity was the female Teena Brandon.81 They locked him in the women’s section of the county jail and published his offenses in the women’s section of the town newspaper.82 Fewer than 5,000 people populated Falls City.83 Before long, those who knew Brandon knew that he was born female.84
By the time Tisdel posted his bond, Brandon’s friendships with Lotter and Nissen were sour.85 At a Christmas Eve party soon after Brandon’s release, Lotter teased and harassed Brandon, saying that he wanted to have sex with him.86 Brandon made light of the harassment, insisting that Lotter “was going to have to get over it.”87
Lotter and Nissen were not satisfied.88 Later that same evening, still obsessed with Brandon’s gender, Lotter and Nissen forced Brandon into the bathroom.89 In order “to determine what sex [he] was,”90 they yanked his shirt up over his head and pulled his underpants down around his knees.91 Nissen later stated that he felt assured that [*PG457]Brandon was female when he “pulled [Brandon’s] pants down and ‘felt the hair’ or ‘fur.’”92
Lotter and Nissen were still not satisfied; after they had proved to themselves that Brandon was anatomically female, they forced Tisdel to look and to acknowledge Brandon’s anatomy.93 After Tisdel looked, Nissen knocked Brandon to the floor, kicked him in the ribs, and stepped on his back.94 Nissen later stated that he beat Brandon in the bathroom because of “Brandon’s lying about [his] gender.”95
After the bathroom beating, Lotter and Nissen forced Brandon into Lotter’s car, drove him out to the parking lot of a deserted plant, and raped him.96 After the rapes, Nissen beat Brandon again, telling him that if he told anyone about the rapes, he and Lotter would “‘silence him permanently.’”97
Lotter and Nissen then took Brandon back to Nissen’s house.98 It was Christmas Day.99 While pretending to take a shower, Brandon escaped out the bathroom window and went to the police.100 He filed a report against Lotter and Nissen, and although police questioned the two men soon after, the police did not arrest them.101 On December 31, believing “‘a dead witness couldn’t testify,’” Lotter and Nissen sought Brandon out at a friend’s house and killed him.102
The facts and circumstances surrounding Brandon’s murder demonstrate that he was killed because he was transgendered.103 Lotter and Nissen punished Brandon because “[he] was not male, as [he] had been representing [him]self,” a social crime of which dating women was a part; however, this fact was not emphasized in either the testimonies or the trials.104 Indeed, Lotter and Nissen stripped him, beat him, and raped him for the express purpose of proving to them[*PG458]selves, to Brandon’s girlfriend, and to Brandon himself that Brandon was a woman.105
It is in this environment of institutionalized intolerance that our senses are bombarded, almost daily, with incident after incident of violence and hate.
Judy Shepard106
Although Matthew’s and Brandon’s murders were similarly brutal, the response of the law enforcement authorities was strikingly, perhaps fatally, different.107 Within hours of Matthew’s attack, police in Wyoming apprehended Henderson for another crime, finding the truck, the gun, and Matthew’s shoes and credit card at the same time.108 Although officers held Henderson only briefly, within days they made the connection between Henderson, McKinney, the evidence acquired at Henderson’s prior arrest, and Matthew’s murder.109 The police then promptly arrested Henderson and McKinney.110
In contrast, the authorities in Brandon’s case seemed loath to act.111 During Brandon’s initial interview, the local sheriff, Charles Laux, focused more on Brandon’s gender expression than on the kidnapping and the rapes.112 Sheriff Laux referred to Brandon as “it,” discredited Brandon’s assertion that he was a virgin prior to the rapes, and insisted that he would need to know the answer to his question “why ‘do you make girls think you are a guy?’” before he could focus on the facts surrounding the rapes.113
[*PG459] After the interview, Brandon complained to his mother that Laux “‘just did not seem to give a damn about the rape[s],’” and that “‘[he] did not want to go back to [Laux’s] office because [he] thought [Laux] would continue to be mean and verbally abuse [him]’” as in the first interview.114
Indeed, Laux’s actions after the interview suggest that Brandon’s intuition was correct.115 When the deputy that Laux assigned to the investigation returned with physical evidence from the rape scene that corroborated Brandon’s testimony, Laux refused to grant the deputy’s request to arrest Lotter and Nissen.116 Instead, Laux delegated part of the investigation to the Falls City Police Department.117
Once on the case, the Falls City police brought Lotter and Nissen to the station for voluntary questioning.118 In so doing, the police put Lotter and Nissen on notice that Brandon had sought the help of the authorities despite the threat of being “silence[d].”119 Meanwhile, Laux continued to treat the danger that Lotter and Nissen posed to Brandon as a low priority, neglecting to obtain warrants for their arrests despite the sheriff’s belief that he had sufficient information to apply for them.120
The combination of the Falls City police investigation and Laux’s delay was deadly.121 Six days after the Falls City police alerted Lotter and Nissan of their status as suspects in Brandon’s rape, Laux still had not obtained warrants for their arrest, and Lotter and Nissan hunted Brandon down and murdered him, just as they had threatened to do.122
The unsympathetic and sluggish treatment of the police in Brandon’s case, in stark contrast to the prompt response of the authorities after Matthew’s murder, demonstrates the crucial role that Brandon’s [*PG460]transgenderism played in his death.123 Despite the brutality of the rape and the amount of physical evidence implicating Lotter and Nissen, Laux was more concerned with figuring Brandon out than with helping him out.124 Although attempts to hold Laux legally responsible for Brandon’s death were unsuccessful, Laux’s ignorance of and preoccupation with Brandon’s transgenderism was hauntingly similar to the mindsets of Lotter and Nissen.125 The sluggish response of the Falls City police and of Laux in particular embodied a lack of institutional protection and sympathy, which ultimately played a critical role in Brandon’s murder.126
The actions that took the lives of Matthew Shepard and Brandon Teena were hate crimes.127 Matthew was kidnapped, beaten, hung, and stripped in freezing temperatures.128 Brandon was publicly humiliated, beaten, kidnapped, and raped.129 Both were murdered.130 Both crimes were overkill.131 Furthermore, these heinous crimes were more than attacks on Matthew and Brandon; they were assaults on the entire communities of which Matthew and Brandon were respectively a part.132
However, despite these superficial similarities, these hate crimes differed from each other in crucial ways.133 First, and most fundamentally, they were different types of hate crimes.134 Matthew was a target because he was gay; Brandon was a target because he was transgen[*PG461]dered.135 Second, they received different institutional responses.136 Authorities responded to Matthew’s attack with timeliness and efficiency; authorities responded to Brandon’s attack with ignorance and inaction.137
Perhaps the most important difference between the murders of Matthew and Brandon is that Brandon’s attack went largely unnoticed,138 while Matthew’s attack sparked a nationwide outcry for more expansive federal hate crime legislation.139 Although federal hate crime legislation has historically excluded crimes based on either sexual orientation or transgenderism,140 the currently proposed legislation, the Hate Crimes Prevention Act of 1999, explicitly includes hate crimes based on sexual orientation.141 It does not expressly include hate crimes against transgendered individuals.142 Although some lawmakers argue that the inclusion of sexual orientation would cover crimes against transgendered individuals, this assumption is dangerous given the different natures of and institutional reactions to these two types of crimes.143 Because of these critical differences, and despite the historic exclusion of transgender hate crimes from federal hate crimes legislation, these hate crimes can and should be covered independently of the sexual orientation provisions in the Hate Crimes Prevention Act of 1999.144
Congress enacted the first federal hate crimes legislation, Section 245 of Title 18 of the United States Code (Section 245), as part of the Civil Rights Act of 1968.145 A defendant charged with a crime under Section 245 is charged with a hate crime as well as an underlying offense such as assault or battery.146
Congress enacted Section 245 in response to the social turmoil surrounding the desegregation of blacks from whites during the 1960s.147 As a result, Section 245’s prohibition extends only to interference by force or threat of force with any person “because of his race, color, religion or national origin.”148 Enacted the year before the transgendered “girls of Stonewall” marked the birth of a visible gay movement,149 Section 245 does not include, explicitly or otherwise, hate crimes against transgendered individuals.150
Since the 1968 enactment of Section 245, Congress has acknowledged that hate crimes occur on bases other than race, color, religion, and national origin.151 In 1990, Congress passed the Hate Crime Statistics Act (Statistics Act).152 The Statistics Act requires the Attorney General of the United States to collect data on crimes based not only on race, religion, and ethnicity, but also on disability and sexual orientation.153 The purpose of the Act is to enable Congress to determine the frequency of hate violence in the United States and to assess the effectiveness of existing hate crimes legislation.154
[*PG463] Although the Statistics Act serves as the first federally legislated acknowledgment that crimes on the basis of sexual orientation are hate crimes, it suffers from three major limitations.155 First, it provides only for the collection of data on hate crimes against certain groups, and not for the prosecution of those crimes.156 Second, this data collection is limited by the fact that the Attorney General does not require local law enforcement agencies to report hate crimes.157 Third, like Section 245, the Statistics Act does not include hate crimes against transgendered individuals.158
Recently, lawmakers demonstrated an interest in assimilating the categories included in the Statistics Act into the protected categories of Section 245 by introducing a more inclusive hate crime bills in both houses of Congress.159 This legislation, known as the Hate Crimes Prevention Act of 1999 (HCPA), mirrors two bills that were introduced in both houses of Congress in 1998; however, the earlier bills lapsed because of the impeachment proceedings during that Congressional term.160
A crucial element of the HCPA is that it would amend Section 245 to include hate crimes motivated by the “actual or perceived gender” of the victim.161 While possible, it is unclear whether or not “actual or perceived” gender will include transgendered individuals.162 In her testimony before the House Judiciary Committee, Riki Anne Wilchins, who serves as the executive director of The Gender Public Advocacy Coalition, indicated that the provision could include transgendered individuals.163 In detailing the provision’s potential application and importance to the transgendered community, Wilchins character[*PG464]ized Brandon Teena’s murder as “an incident motivated by bias against Brandon’s perceived gender (i.e., the murderers perceived Brandon as a woman transgressing norms of gender expression[).]”164 Additionally, other progressive organizations, such as the National Gay and Lesbian Task Force (NGLTF), support the idea that the HCPA’s gender provision should be understood to include transgendered individuals.165
However, testimony in the House and the Senate does not clearly indicate transgender inclusion.166 This is due to the absence of floor debates about the bill,167 coupled with a lack of direct discussion about the extent of the gender provision’s coverage by the bill’s sponsors when they introduced it in Congress.168 For example, when he first introduced the bill to the Senate, Senator Edward Kennedy, one of the bill’s principle sponsors, mentioned that NGLTF supported the bill, but he did not detail NGLTF’s interpretation of the bill’s gender provision.169 Furthermore, Senator Kennedy attempted to bolster support for the bill by recounting recent hate crimes, but none of the crimes he listed involved a transgendered individual.170 Similarly, Senator Patrick Leahy, another principle sponsor of the bill, also recounted non-transgender hate crimes in his supporting statements.171
[*PG465] Even more ominous than Senators Kennedy’s and Leahy’s failures to mention transgendered individuals was Senator Ron Wyden’s implied limitation of the gender provision to women, suggesting that coverage would not extend to transgenders.172 In his statement as a principle sponsor of the bill, Senator Wyden stated, “This bill [will] finally extend federal hate crime laws to cover attacks against women.”173
Because these statements by key sponsors of the HCPA do not clearly suggest that the legislative intent of the bill includes protection for transgendered individuals, most “transgender activists fear that without explicit mention [transgendered individuals] will not be covered by the legislation. . . .”174 Although this fear has yet to be realized, it presents a difficult political conundrum for the bill’s lobbyists who believe that if they advocate for the explicit inclusion of transgendered individuals, the bill will never pass.175
Our bodies are the battle grounds where a war to regulate and control gender expression is increasingly being fought.
Riki Anne Wilchins176
Although it is uncertain whether or not the provisions of the HCPA will explicitly or implicitly extend to transgendered individuals, it is strikingly clear that they should.177 The Gender Political Action Committee reports that, on average, one transgendered person is murdered every month.178 Indeed, five years after Brandon’s murder, in 1998, the number of reported crimes against transgendered individuals increased by forty-nine percent over the previous year.179
[*PG466] However, this high percentage of hate crimes does not include unreported violence.180 Hate crimes against transgendered individuals may go unreported for a variety of reasons, ranging from an assumption by authorities that an anatomical male wearing a dress is gay,181 to a lack of trust on the part of transgendered individuals that authorities who have belittled them will protect them in a crisis, as in Brandon’s case.182 According to Kerry Lobel, executive director of the National Gay and Lesbian Task Force, “GLBT people often do not report hate crimes. . .because of the fear of discrimination by police; lack of interest or diligence on the part of the police; and lack of training in many police departments in working with members of the GLBT community.”183
Furthermore, Lobel notes that while some of the more egregious hate crimes against transgendered individuals that are reported gain public attention, “‘countless others are ignored.’”184 Carrie Davis, a counselor at the Gender Identity Project at the Lesbian and Gay Community Services Center in New York City, suggests one reason for this lack of media attention—some transgendered people who have trouble finding employment turn to prostitution, and many media are uncomfortable or unwilling to report on the harassment or murder of a prostitute.185 However, these hate crime statistics continue to rise, and only the District of Columbia and four states, California, Minnesota, Missouri, and New Hampshire, currently interpret their hate crimes provisions to include transgendered individuals.186
[*PG467] Interpreting “actual or perceived gender” to include transgendered individuals could be the first step in reversing the virtual death sentences imposed by society on this historically abused and ignored community.187 For example, the gender-obsessed murderers of Brandon Teena make clear that not all transgender hate crimes fall into the category of crimes motivated by a perceived sexual orientation.188 For this reason, reliance on the proposed provisions that would cover crimes based on sexual orientation to cover crimes against transgendered individuals is narrow-sighted and inadequate.189
Furthermore, supporters of the HCPA promote its importance as a “federal backstop to ensure adequate punishment if local authorities are unable or unwilling to prosecute.”190 The deadly delay of the local authorities responsible for protecting Brandon Teena in Nebraska and the fear of similar treatment that dissuades many transgendered victims from seeking institutional protection at all, demonstrates the importance of the role the HCPA could play in ensuring an adequate response to transgender hate crimes.191
In addition to compensating for inadequate local investigations, the HCPA would also provide a means for correcting the limitations of local authorities.192 For example, the HCPA would make grants available to train local law enforcement officers in investigating, prosecuting, and preventing hate crimes.193 Sensitivity training for transgender hate crimes would not only address the ignorance and [*PG468]bigotry that abuses, discourages, and kills individuals like Brandon Teena, but it would aid local authorities in discerning between transgender hate crimes and crimes based on sexual orientation, thus leading to a more accurate perception of the prevalence of transgender hate crimes.194
In response to these benefits of the HCPA, opponents of the legislation argue that state laws are adequate to address the hate crimes problem and that federal legislation on the subject would create special rights for certain groups.195 However, the purpose of the HCPA is not to replace arguably adequate state laws, but only to serve as a federal back-up when and if local authorities do not serve and protect as state law requires them to do.196 It does not follow from the fact that the HCPA would play a supplemental role—assuming state laws are consistently and adequately enforced—that it should, therefore, not exist.197 Proponents for the HCPA support the principle that in matters of life and death, as hate crimes often are for transgendered individuals, guarantees are better than faith; it is better to be safe than sorry.198
Perhaps the most important aspect of including transgendered individuals within the protections of the HCPA’s “actual or perceived gender” provision is they would be included in the HCPA’s powerful message that “hate and bigotry will not be tolerated in America.”199 “[T]here is symbolic value in Congressional condemnation of. . .hate crimes” urges Wade Henderson, executive director of the Leadership Conference on Civil Rights, and “federal law should reflect the federal interest in protecting all minorities from bigotry and hate-motivated violence.”200 Indeed, according to Senator Kennedy, in a society that views diversity as a source of strength and adaptability, “it’s an embarrassment that [Congress has not] already acted to close [the] glaring gaps in present law.”201
[*PG469] “Festering” in these gaps is both the bigotry of transgender hate crime perpetrators and the ignorance and lack of sympathy of the very institutions responsible for protecting these invisible, innocent victims.202 “[T]here also is a toll we are paying each year in other hate crimes that find less notoriety, but with no less suffering for the victims and their families,” Senator Leahy explains.203 Thus, the ante is high: with federally legislated awareness, sensitivity training, and protection stacked against a rising body count, transgendered people must rely on their Congressional representatives to declare that the phrase “actual or perceived gender” includes them.204
Eric Brandt’s book, Dangerous Liaisons: Blacks, Gays, and the Struggle for Equality, is comprised of cutting-edge essays by some of the most notable participants in the debate about the past, present, and future of civil rights movements.205 In such a progressive forum, it is surprising that Brandt’s discussion of hate crimes against gays fails to distinguish between violence against gays and violence against transgenders.206 Brandt’s conflation of violence against transgendered individuals with violence based on sexual orientation exemplifies both the inadequate response to and the interminable invisibility of hate crimes against transgenders.207
The statistics are staggering: at least one transgendered person is murdered every month because of their gender expression.208 In November, 1998, thirty years after the transgendered girls of Stonewall sparked a visible gay and lesbian movement, five years after Brandon Teena was murdered for being transgendered in Nebraska, and merely one month after Matthew Shepard’s murder in Wyoming incited a national debate over the question of whether or not to include sexual orientation in federal hate crime legislation, thirty-four-year-old transgendered Rita Hester was stabbed twenty times in the chest [*PG470]in Massachusetts.209 In December, a thirty-six-year-old preoperative transsexual, Vianna Faye Williams, was stabbed nine times in her back, neck, and chest in New Jersey.210 In January, 1999, an eighteen-year-old cross-dresser who went by the name Lauryn Paige was found stabbed, with his throat cut, in a patch of woods in Austin, Texas.211 In February, an unknown man wearing women’s clothing was shot several times in a motel parking lot in Houston, Texas.212 In March, thirty-three-year-old transgendered Tracy Thompson was beaten on a country road in Georgia.213 All died.214
These are merely the reported crimes.215 Countless hate crimes against transgendered individuals go unreported, either because they are mischaracterized by law enforcement authorities or because the victims themselves fail to report them out of a fear of additional victimization by bigoted police officers.216
The historical ignorance, fear, and brutality surrounding transgendered individuals is real and pervasive, but it is not necessarily enduring. The recent proposal in Congress of the Hate Crimes Prevention Act of 1999 includes protection for crimes based on “actual or perceived” sexual orientation and gender.217 On the thirtieth anniversary of Stonewall218—the first united response to violence against transgendered individuals, which sparked a visible gay movement—it is ironic that the HCPA explicitly includes hate crimes based on sexual orientation but does not expressly cover hate crimes against transgendered individuals.219 Indeed, this scenario is not only ironic, but unfortunate, since, although some crimes against transgendered individuals are motivated by perceived sexual orientation, many are motivated by gender expression in and of itself.220 All transgender hate crimes could receive federally legislated visibility and protection under the HCPA’s provisions for “actual or perceived gender”—and they should.
[*PG471] The purposes of the HCPA are uniquely compatible with the needs of the transgendered community.221 First, Congressional sponsors intend the legislation to serve only as a federal back-up for inadequate local investigations, which often result when law enforcement authorities either become preoccupied with understanding or mischaracterize the identities of transgender hate crime victims.222 Second, the legislation allows for monetary grants to train local law enforcement officers in investigating, prosecuting, and, ultimately, preventing hate crimes.223 Third, federally legislated acknowledgment and protection of the transgendered individual’s basic right to life and dignity would send a powerful message of acceptance and could serve as a deterrent to future crimes against them.224
It is unclear whether Congress intends “actual or perceived gender” to include transgendered individuals or whether the HCPA will even become law during this Congressional term.225 However, thirty years after Stonewall, with the body count rising monthly, perhaps one transgender political organization has named itself best: “It’s Time America.”226