Why Am I Doing This?
April 2, 2009
My Dead Feminist Heart
April 15, 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.”

and

“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.

  • Pingback: Gwen zapata | Premiervirtual()

  • As a note, even though at this point its necro posting there is one group that this bill (as well as ENDA) does not cover, and it should, that is directly related to us.

    It does not cover attacks and harm to our significant others when they are the victim because of their association with us.

    And *that* needs to be brought up, Marti.

  • As a note, even though at this point its necro posting there is one group that this bill (as well as ENDA) does not cover, and it should, that is directly related to us.

    It does not cover attacks and harm to our significant others when they are the victim because of their association with us.

    And *that* needs to be brought up, Marti.

  • Chet

    This hate crime bill is the biggest crock of B.S. I have ever heard of. We already have laws against physical violance we do not need more. It is against the law to physically assault anyone. If they pass this bill it will open the door to censor speech by anyone who thinks the bible is right and agrees that homosexuality, transsexuality is sin. Read the book of Romans it is not hate crime to call sin sin. All physical violance is against the law. Why do we need special laws for this group of people?

    • Marti Abernathey

      @Chet you’re amusing. This bill has NOTHING to do with speech, but everything to do with punishing and investigating CRIME. Transsexuality is a sin? Really? You really should read Isaiah 56:4, before you spout your ignorance here. Last I checked, Christ said the two most important commandments are to love God and love your neighbor like you love yourself. They aren’t any more “special” than the ones on the books that cover race, religion, national orgin, etc. Wake up and smell the rational, educated thinking.

  • Chet

    This hate crime bill is the biggest crock of B.S. I have ever heard of. We already have laws against physical violance we do not need more. It is against the law to physically assault anyone. If they pass this bill it will open the door to censor speech by anyone who thinks the bible is right and agrees that homosexuality, transsexuality is sin. Read the book of Romans it is not hate crime to call sin sin. All physical violance is against the law. Why do we need special laws for this group of people?

    • Marti Abernathey

      @Chet you’re amusing. This bill has NOTHING to do with speech, but everything to do with punishing and investigating CRIME. Transsexuality is a sin? Really? You really should read Isaiah 56:4, before you spout your ignorance here. Last I checked, Christ said the two most important commandments are to love God and love your neighbor like you love yourself. They aren’t any more “special” than the ones on the books that cover race, religion, national orgin, etc. Wake up and smell the rational, educated thinking.

  • Not being one of them, I will instead rely on knowledge of the congressional intent.

  • Not being one of them, I will instead rely on knowledge of the congressional intent.

  • catkisser

    How interesting that we are told that “legally” there is little difference between gender and sex and yet for over a decade transitioned transsexual women were prevented from filing Title VII sex discrimination claims based on several court decisions that essentially said transsexuals (and in particular post ops) had no sex because they WERE transsexuals. That caselaw still out numbers those that finally broke through that deception.

    When it comes to the law, logic goes out the window if any, any at all, wiggle room is left. But by all means lets rely on those who told us over and over HRC had changed.

  • catkisser

    How interesting that we are told that “legally” there is little difference between gender and sex and yet for over a decade transitioned transsexual women were prevented from filing Title VII sex discrimination claims based on several court decisions that essentially said transsexuals (and in particular post ops) had no sex because they WERE transsexuals. That caselaw still out numbers those that finally broke through that deception.

    When it comes to the law, logic goes out the window if any, any at all, wiggle room is left. But by all means lets rely on those who told us over and over HRC had changed.

  • I guess the true test of the law will be when the first case is brought against it. I’m not saying the language doesn’t matter, but that even with fairly detailed language there is some room for judges to interepret the law.

  • I guess the true test of the law will be when the first case is brought against it. I’m not saying the language doesn’t matter, but that even with fairly detailed language there is some room for judges to interepret the law.

  • And what guests they can be! *evil grin*

  • And what guests they can be! *evil grin*

  • Again Abby, I was responding to Mara’s post saying that she had checked with experts and on her own website as is in Marti’s post she is quoted as saying that lawyers who were involved with the drafting of the legislation said the language is all inclusive, yet NONE of those experts have been named or are willing to come forward to support that claim. It’s still not about you Abby.

    The great thing about having my own show is that I get to choose my own guests.

  • Again Abby, I was responding to Mara’s post saying that she had checked with experts and on her own website as is in Marti’s post she is quoted as saying that lawyers who were involved with the drafting of the legislation said the language is all inclusive, yet NONE of those experts have been named or are willing to come forward to support that claim. It’s still not about you Abby.

    The great thing about having my own show is that I get to choose my own guests.

  • So, this discussion has degenerated to name calling, Ethan? I’m a “lemming” because I disagree with you and Marti? Hardly.

    I’d be more than happy to discuss this issue on your program. Just tell me when.

  • So, this discussion has degenerated to name calling, Ethan? I’m a “lemming” because I disagree with you and Marti? Hardly.

    I’d be more than happy to discuss this issue on your program. Just tell me when.

  • Tune in to TransFM this Sunday, perhaps by then some “experts” will materialize to discuss the hate crimes language.
    Now run off like good little status quo lemmings and call your reps. Wouldn’t want anyone to waste time on the concerns of the people in our community.

  • Tune in to TransFM this Sunday, perhaps by then some “experts” will materialize to discuss the hate crimes language.
    Now run off like good little status quo lemmings and call your reps. Wouldn’t want anyone to waste time on the concerns of the people in our community.

  • Yes, Marti, sex and gender are different, but your argument ignores the inclusion of the word “related” in the definition of “gender identity.” That definition doesn’t limit the hate crimes bill to crimes motivated only by the victim’s “characteristics of gender,” but instead includes all crimes motivated by any “gender-related” characteristics. Primary and secondary sex characteristics (i.e., physical or biological attributes such as genitalia, breasts and facial hair) are unquestionably gender related, since most people still equate sex and gender. (In fact, I can’t imagine a greater degree of “relatedness” than equivalence.) Even in our community, where people understand that sex and gender are different and that a person can be a woman or a man, regardless of whether s/he is physically male or female, one’s physical sex is still related to her/his gender, even if that relation is one of opposition (i.e., the person’s sex and gender don’t match to a greater or lesser extent, as in a transgender person), rather than congruence (i.e., the person’s sex and gender do match, as in a cisgender person). Thus, the inclusion of the word “related” in the definiton makes it inclusive of any characteristic that is even remotely related to gender, including physical sex, as well as gender identity.

    When Allen Andrade beat Angie Zapata to death with a fire extinguisher, he did so, at least according to Andrade, because he discovered a gender-related characteristic (i.e., Angie’s penis) when he expected to find a different gender-related characteristic (i.e., a vagina). The same reasoning applies to the murders of Gwen Araujo and Deborah Forte. Each of those murders was, therefore, motivated by the victim’s “gender-related characteristics” and would be included in the hate crimes bill’s definition of “gender identity.”

    Lastly, Marti, I understand and appreciate your desire, both for yourself and for our community, to ensure that the hate crimes bill does what we need it to do. However, just because you don’t understand or believe that the current language of the bill is adequate doesn’t mean that the bill, in fact, doesn’t do what we need it to.

    You, Toni (aka Dyssonance), Meghan, Mara and I have all spent substantial time and energy discussing this issue, time and energy that could be better devoted to contacting our representatives in Congress and encouraging them to support both the hate crimes bill and ENDA. In my opinon, it’s time to move on. Whether you agree or not is, of course, up to you, but I hope you will consider the negative impact that your attempt to push this issue into the limelight is having on our ability to enact both of those bills, which will do what we need them to, into law.

  • Yes, Marti, sex and gender are different, but your argument ignores the inclusion of the word “related” in the definition of “gender identity.” That definition doesn’t limit the hate crimes bill to crimes motivated only by the victim’s “characteristics of gender,” but instead includes all crimes motivated by any “gender-related” characteristics. Primary and secondary sex characteristics (i.e., physical or biological attributes such as genitalia, breasts and facial hair) are unquestionably gender related, since most people still equate sex and gender. (In fact, I can’t imagine a greater degree of “relatedness” than equivalence.) Even in our community, where people understand that sex and gender are different and that a person can be a woman or a man, regardless of whether s/he is physically male or female, one’s physical sex is still related to her/his gender, even if that relation is one of opposition (i.e., the person’s sex and gender don’t match to a greater or lesser extent, as in a transgender person), rather than congruence (i.e., the person’s sex and gender do match, as in a cisgender person). Thus, the inclusion of the word “related” in the definiton makes it inclusive of any characteristic that is even remotely related to gender, including physical sex, as well as gender identity.

    When Allen Andrade beat Angie Zapata to death with a fire extinguisher, he did so, at least according to Andrade, because he discovered a gender-related characteristic (i.e., Angie’s penis) when he expected to find a different gender-related characteristic (i.e., a vagina). The same reasoning applies to the murders of Gwen Araujo and Deborah Forte. Each of those murders was, therefore, motivated by the victim’s “gender-related characteristics” and would be included in the hate crimes bill’s definition of “gender identity.”

    Lastly, Marti, I understand and appreciate your desire, both for yourself and for our community, to ensure that the hate crimes bill does what we need it to do. However, just because you don’t understand or believe that the current language of the bill is adequate doesn’t mean that the bill, in fact, doesn’t do what we need it to.

    You, Toni (aka Dyssonance), Meghan, Mara and I have all spent substantial time and energy discussing this issue, time and energy that could be better devoted to contacting our representatives in Congress and encouraging them to support both the hate crimes bill and ENDA. In my opinon, it’s time to move on. Whether you agree or not is, of course, up to you, but I hope you will consider the negative impact that your attempt to push this issue into the limelight is having on our ability to enact both of those bills, which will do what we need them to, into law.

  • I agree, Marti — they do matter. But in law, they are conflated, commingled, — and you have to use *that* definition when discussing the bill.

    The law has definitions, marti. And even though you and I dont like them, those are the ones we have to work with, because those are the one’s that count there — all the others are worthless. I have to be careful when I speak to areas of my background because in sociology we use word that have very precise meanings for us — but in the restof the world, on blogs, when people read them they usually will leap to the exact opposite conclusion.

    The Law has defintions for that purpose — and you have to use them

    You said *you* brought this person in. You didn’t. That’s an outright lie, Marti. You are quoting them third hand, not firsthand.

    *sigh* — you say in one sentence you are afraid that this language will do this, and in the next you aren’t afraid. The one not making sense is you.

    Read my posting earlier again — I used Price as an example and it wasn’t *that* long ago.

    That wasn’t opinion — you are, after all, speculating on a speculative and questionable authority.

    My logic escapes many people — the question is why do they resist logic so much.

  • I agree, Marti — they do matter. But in law, they are conflated, commingled, — and you have to use *that* definition when discussing the bill.

    The law has definitions, marti. And even though you and I dont like them, those are the ones we have to work with, because those are the one’s that count there — all the others are worthless. I have to be careful when I speak to areas of my background because in sociology we use word that have very precise meanings for us — but in the restof the world, on blogs, when people read them they usually will leap to the exact opposite conclusion.

    The Law has defintions for that purpose — and you have to use them

    You said *you* brought this person in. You didn’t. That’s an outright lie, Marti. You are quoting them third hand, not firsthand.

    *sigh* — you say in one sentence you are afraid that this language will do this, and in the next you aren’t afraid. The one not making sense is you.

    Read my posting earlier again — I used Price as an example and it wasn’t *that* long ago.

    That wasn’t opinion — you are, after all, speculating on a speculative and questionable authority.

    My logic escapes many people — the question is why do they resist logic so much.

  • Marti Abernathey

    1. the definition of sex and gender do matter.
    2. Then why have definitions in the language?
    3. Wth does that have to do with the price of tea in China?
    A. That makes no sense.
    B. I posted a comment by Kathy Padilla, who spoke with Barney Frank’s legislative lawyer.
    C. You’re stating there’s no difference between sex and gender in law? You’d be wrong about that. Price Waterhouse was quite a long time ago.
    D. Whatever. Your opinion.
    E. Thanks for a synopsis, but frankly your logic in this comment escapes me.

  • Marti Abernathey

    1. the definition of sex and gender do matter.
    2. Then why have definitions in the language?
    3. Wth does that have to do with the price of tea in China?
    A. That makes no sense.
    B. I posted a comment by Kathy Padilla, who spoke with Barney Frank’s legislative lawyer.
    C. You’re stating there’s no difference between sex and gender in law? You’d be wrong about that. Price Waterhouse was quite a long time ago.
    D. Whatever. Your opinion.
    E. Thanks for a synopsis, but frankly your logic in this comment escapes me.

  • Errors:

    1 – the Who definition and your persnal feelings about it being right or not are irrelevant, Marti.

    Neither are going to affect current understandings as they will be applied in the law. So those arguments are null and void (which I explained earlier, but failed to do so well enough, so I apologize).

    2 – The bill is pretty clear — the DOJ would be involved in cases where requested. Period.

    3 – *you* did not bring this third party person in. So your claim is as empty as theirs in your own words.

    Those are all seriously bad errors on your part.

    And, lastly, the one I will utter right here and now is that the same Congressman’s staff is the one who let him use the bathroom scare. Sorry — they are not exactly the sharpest tacks in the room, even though they are trying very hard to give him some traction.

    So, in review:

    A – You said you weren’t doing it out of fear — that was a error.
    B – You said you brought in this lawyer — that was a error.
    C – You brought in definitions that are not applicable in law — that was an error
    D – You leap to a conclusion without evidence — that is an error.
    E – You said it doesn’t cover transsexuals — and that is your biggest one of all.

    Also, you might want to edit the entry, given that an author you state echoes your views has come forward and noted that she does not so echo.

    sorry to be ouchie, tonight — i’m kinda grumpy.

  • Errors:

    1 – the Who definition and your persnal feelings about it being right or not are irrelevant, Marti.

    Neither are going to affect current understandings as they will be applied in the law. So those arguments are null and void (which I explained earlier, but failed to do so well enough, so I apologize).

    2 – The bill is pretty clear — the DOJ would be involved in cases where requested. Period.

    3 – *you* did not bring this third party person in. So your claim is as empty as theirs in your own words.

    Those are all seriously bad errors on your part.

    And, lastly, the one I will utter right here and now is that the same Congressman’s staff is the one who let him use the bathroom scare. Sorry — they are not exactly the sharpest tacks in the room, even though they are trying very hard to give him some traction.

    So, in review:

    A – You said you weren’t doing it out of fear — that was a error.
    B – You said you brought in this lawyer — that was a error.
    C – You brought in definitions that are not applicable in law — that was an error
    D – You leap to a conclusion without evidence — that is an error.
    E – You said it doesn’t cover transsexuals — and that is your biggest one of all.

    Also, you might want to edit the entry, given that an author you state echoes your views has come forward and noted that she does not so echo.

    sorry to be ouchie, tonight — i’m kinda grumpy.

  • Mara Keisling

    I too appreciate that people care enough to discuss the bill, so I will join in.

    As you know, I have been intimately involved in the advancement of this bill for almost ten years. I was involved before gender identity was included, going to coalition meetings for several years to be told over and over that gender identity would never be in the bill. After a while, I was involved while discussions were happening about how to include gender identity, and I have been involved in a variety of discussions this year about the definition of gender identity in this bill. I have spoken with members of Congress, with Congressional staff, with prosecutors, with victims families and with others.

    The exact language of this bill is very very important to NCTE and to me personally and NCTE has spent a great deal of time on it. Here is the bottom line:

    The experts agree that there is not a single past actual transgender murder case, nor any fact pattern that we have thought of in which the current definition would be any less useful or applicable than the definition that was used in ENDA in the 110th Congress, which many folks assume would be better for this bill. None.

    NCTE strongly supports the language in this bill. This is not language transpeople are settling for; this is language we need and want. And NCTE is working diligently to get it passed.

    Part of the misunderstanding stems from a lack of knowing what the bill does. A lot of folks have wondered whether particular murder victims (“Angie Zapata, Gwen Araujo, Chanel Pickett, and Deborah Forte”) would be “protected” or “included” or “covered.” I’ll resist the armchair legal analysis which I am unqualified to do, but this bill is not about prosecuting all hate crimes as federal crimes–thus the title “Local Law Enforcement Hate Crimes Prevention Act.” The definition of gender identity in HR1913, will allow the Justice Department to assist local law enforcement in the whole range of trans cases when asked. It will allow the DoJ to step in in the rare occasions it needs to. And it will allow the imprtant symbolic statement, which over time will help prevent crimes against all types of transpeople.

    This is a strong bill that we are supporting wholeheartedly. Let’s get it passed.

    Mara Keisling

    • Marti Abernathey

      Part of the misunderstanding stems from a lack of knowing what the bill does. A lot of folks have wondered whether particular murder victims (”Angie Zapata, Gwen Araujo, Chanel Pickett, and Deborah Forte”) would be “protected” or “included” or “covered.” I’ll resist the armchair legal analysis which I am unqualified to do, but this bill is not about prosecuting all hate crimes as federal crimes–thus the title “Local Law Enforcement Hate Crimes Prevention Act.” he definition of gender identity in HR1913, will allow the Justice Department to assist local law enforcement in the whole range of trans cases when asked. It will allow the DoJ to step in in the rare occasions it needs to. And it will allow the imprtant symbolic statement, which over time will help prevent crimes against all types of transpeople.

      1. You won’t get the DOJ won’t get involved if the language isn’t specific, after all that’s why you have definitions in the language. God forbid we have a Republican in office 4 years from now, the DOJ could easily wiggle out of this language (it was fairly easy for them to rule that waterboarding wasn’t torture, for example). With the ENDA language, there would be absolutely NO wiggle room.

      2. Both you and Meghan point to “experts” but don’t provide any names. I’ve included a member of Frank’s OWN LEGISLATIVE STAFF, a legislative attorney.

  • Mara Keisling

    I too appreciate that people care enough to discuss the bill, so I will join in.

    As you know, I have been intimately involved in the advancement of this bill for almost ten years. I was involved before gender identity was included, going to coalition meetings for several years to be told over and over that gender identity would never be in the bill. After a while, I was involved while discussions were happening about how to include gender identity, and I have been involved in a variety of discussions this year about the definition of gender identity in this bill. I have spoken with members of Congress, with Congressional staff, with prosecutors, with victims families and with others.

    The exact language of this bill is very very important to NCTE and to me personally and NCTE has spent a great deal of time on it. Here is the bottom line:

    The experts agree that there is not a single past actual transgender murder case, nor any fact pattern that we have thought of in which the current definition would be any less useful or applicable than the definition that was used in ENDA in the 110th Congress, which many folks assume would be better for this bill. None.

    NCTE strongly supports the language in this bill. This is not language transpeople are settling for; this is language we need and want. And NCTE is working diligently to get it passed.

    Part of the misunderstanding stems from a lack of knowing what the bill does. A lot of folks have wondered whether particular murder victims (“Angie Zapata, Gwen Araujo, Chanel Pickett, and Deborah Forte”) would be “protected” or “included” or “covered.” I’ll resist the armchair legal analysis which I am unqualified to do, but this bill is not about prosecuting all hate crimes as federal crimes–thus the title “Local Law Enforcement Hate Crimes Prevention Act.” The definition of gender identity in HR1913, will allow the Justice Department to assist local law enforcement in the whole range of trans cases when asked. It will allow the DoJ to step in in the rare occasions it needs to. And it will allow the imprtant symbolic statement, which over time will help prevent crimes against all types of transpeople.

    This is a strong bill that we are supporting wholeheartedly. Let’s get it passed.

    Mara Keisling

    • Marti Abernathey

      Part of the misunderstanding stems from a lack of knowing what the bill does. A lot of folks have wondered whether particular murder victims (”Angie Zapata, Gwen Araujo, Chanel Pickett, and Deborah Forte”) would be “protected” or “included” or “covered.” I’ll resist the armchair legal analysis which I am unqualified to do, but this bill is not about prosecuting all hate crimes as federal crimes–thus the title “Local Law Enforcement Hate Crimes Prevention Act.” he definition of gender identity in HR1913, will allow the Justice Department to assist local law enforcement in the whole range of trans cases when asked. It will allow the DoJ to step in in the rare occasions it needs to. And it will allow the imprtant symbolic statement, which over time will help prevent crimes against all types of transpeople.

      1. You won’t get the DOJ won’t get involved if the language isn’t specific, after all that’s why you have definitions in the language. God forbid we have a Republican in office 4 years from now, the DOJ could easily wiggle out of this language (it was fairly easy for them to rule that waterboarding wasn’t torture, for example). With the ENDA language, there would be absolutely NO wiggle room.

      2. Both you and Meghan point to “experts” but don’t provide any names. I’ve included a member of Frank’s OWN LEGISLATIVE STAFF, a legislative attorney.

  • But it’s not ambiguous, Marti. That’s the point. In a world in which physical attributes, such as having a penis, are either equated with gender (in the case of a cisgender person whose gender and sex correspond in the popular mind) or seen as an indication that something is “wrong” with a person’s gender and therefore grounds for discrimination or violence (in the case of Angie Zapata and others like her whose genitals do not match what others expect based on her gender expression), those physical attributes are unquestionably “gender-related characteristics.” I cannot fathom how an attack on someone because her/his physical body doesn’t match her/his gender expression is not based on her/his “gender-related characteristic[s].” By definition, a person’s primary and secondary sex characteristics, e.g., genitals, breasts, facial hair, etc., are gender-related and, therefore, grounds for a hate crimes prosecution under the new bill, whether or not they match or contradict what the attacker expects based on the person’s external gender expression. Even in the case where the person’s physical sex and gender expression match, but the person is nonetheless attacked because s/he has said that s/he is a cross-dresser, transgender woman or man, transsexual, “woman trapped in a man’s body” or vice versa, the attack was motivated by her/his “actual or perceived gender-related characteristics.”

    Your argument that the the definition in the hate crimes bill excludes gender identity because “gender identity” is not a “gender-related characteristic” also fails if you examine the definition in ENDA, which you claim includes both. ENDA defines “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual.” Thus, by definition, “gender-related identity” *is* a “gender-related characteristic.” The omission of the specific examples of “gender-related characteristics” used in ENDA from the definition in the hate crimes bill in favor of the simpler and fully-inclusive term “gender-related characteristics” does NOT, therefore, indicate that Congress intends that those definitions should be interpreted as having different meanings.

    I also see no correspondence between the definition of “gender identity” and a defendant’s ability to rely on the “transpanic defense.” Certainly, the murderer of Amancio Corrales here in Arizona relied on that defense even though he was never charged with a hate crime, i.e., a crime requiring proof that the attack was motivated by their victims’ “gender identity.” The transpanic defense is available in any homicide prosecution because of statutes that reduce the crime from murder to manslaughter when the defendant acted “in the heat of passion” or due to a “sudden quarrel.” Those statutes were originally designed to deal with the situation of a husband who comes home to discover his wife in bed with another man and is so enraged that he murders the lover, which, sadly, our sexist society saw (but hopefully no longer sees) as at least partial justification for the crime. The adoption of hate crimes bills allowing enhanced penalties because the crime is motivated by the victim’s gender identity will NOT make the transpanic defense easier (or harder) to assert. Your argument that the proposed definition of “gender identity” in the hate crimes bill will have that effect conflates two separate and unrelated problems.

    Finally, you complain that there is “no reason” for the definitions of gender idenity in ENDA and the hate crimes bill to be different. While that may or may not be true, since the differences are unlikely to have any real impact on the enforcement of either law, no justification is required and your attempt to create controversy where none is justified distracts all of us from focusing our energy on getting both bills passed as soon as possible.

    Marti, given the importance of both of these bills to the transgender community, I understand and appreciate your concern that they be as strong and as comprehensive as we can make them. However, I disagree that there is any reason to fear that the definition in the hate crimes bill leaves some of us out of its protections. I, therefore, intend to support the hate crimes bill as introduced by Rep. Conyers and urge you to do the same.

    Blessings,
    Abby

    • Marti Abernathey

      “gender-related characteristic[s].” By definition, a person’s primary and secondary sex characteristics, e.g., genitals, breasts, facial hair, etc., are gender-related and, therefore, grounds for a hate crimes prosecution under the new bill, whether or not they match or contradict what the attacker expects based on the person’s external gender expression.

      This isn’t true. Gender and sex are two different things. A person’s primary and secondary sex characteristics, are… sex characteristics, not gender characteristics.

      From WHO:”Sex” refers to the biological and physiological characteristics that define men and women.

      “Gender” refers to the socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women.

      A penis isn’t a social construction, but a biologically/genetically constructed.

  • But it’s not ambiguous, Marti. That’s the point. In a world in which physical attributes, such as having a penis, are either equated with gender (in the case of a cisgender person whose gender and sex correspond in the popular mind) or seen as an indication that something is “wrong” with a person’s gender and therefore grounds for discrimination or violence (in the case of Angie Zapata and others like her whose genitals do not match what others expect based on her gender expression), those physical attributes are unquestionably “gender-related characteristics.” I cannot fathom how an attack on someone because her/his physical body doesn’t match her/his gender expression is not based on her/his “gender-related characteristic[s].” By definition, a person’s primary and secondary sex characteristics, e.g., genitals, breasts, facial hair, etc., are gender-related and, therefore, grounds for a hate crimes prosecution under the new bill, whether or not they match or contradict what the attacker expects based on the person’s external gender expression. Even in the case where the person’s physical sex and gender expression match, but the person is nonetheless attacked because s/he has said that s/he is a cross-dresser, transgender woman or man, transsexual, “woman trapped in a man’s body” or vice versa, the attack was motivated by her/his “actual or perceived gender-related characteristics.”

    Your argument that the the definition in the hate crimes bill excludes gender identity because “gender identity” is not a “gender-related characteristic” also fails if you examine the definition in ENDA, which you claim includes both. ENDA defines “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual.” Thus, by definition, “gender-related identity” *is* a “gender-related characteristic.” The omission of the specific examples of “gender-related characteristics” used in ENDA from the definition in the hate crimes bill in favor of the simpler and fully-inclusive term “gender-related characteristics” does NOT, therefore, indicate that Congress intends that those definitions should be interpreted as having different meanings.

    I also see no correspondence between the definition of “gender identity” and a defendant’s ability to rely on the “transpanic defense.” Certainly, the murderer of Amancio Corrales here in Arizona relied on that defense even though he was never charged with a hate crime, i.e., a crime requiring proof that the attack was motivated by their victims’ “gender identity.” The transpanic defense is available in any homicide prosecution because of statutes that reduce the crime from murder to manslaughter when the defendant acted “in the heat of passion” or due to a “sudden quarrel.” Those statutes were originally designed to deal with the situation of a husband who comes home to discover his wife in bed with another man and is so enraged that he murders the lover, which, sadly, our sexist society saw (but hopefully no longer sees) as at least partial justification for the crime. The adoption of hate crimes bills allowing enhanced penalties because the crime is motivated by the victim’s gender identity will NOT make the transpanic defense easier (or harder) to assert. Your argument that the proposed definition of “gender identity” in the hate crimes bill will have that effect conflates two separate and unrelated problems.

    Finally, you complain that there is “no reason” for the definitions of gender idenity in ENDA and the hate crimes bill to be different. While that may or may not be true, since the differences are unlikely to have any real impact on the enforcement of either law, no justification is required and your attempt to create controversy where none is justified distracts all of us from focusing our energy on getting both bills passed as soon as possible.

    Marti, given the importance of both of these bills to the transgender community, I understand and appreciate your concern that they be as strong and as comprehensive as we can make them. However, I disagree that there is any reason to fear that the definition in the hate crimes bill leaves some of us out of its protections. I, therefore, intend to support the hate crimes bill as introduced by Rep. Conyers and urge you to do the same.

    Blessings,
    Abby

    • Marti Abernathey

      “gender-related characteristic[s].” By definition, a person’s primary and secondary sex characteristics, e.g., genitals, breasts, facial hair, etc., are gender-related and, therefore, grounds for a hate crimes prosecution under the new bill, whether or not they match or contradict what the attacker expects based on the person’s external gender expression.

      This isn’t true. Gender and sex are two different things. A person’s primary and secondary sex characteristics, are… sex characteristics, not gender characteristics.

      From WHO:”Sex” refers to the biological and physiological characteristics that define men and women.

      “Gender” refers to the socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women.

      A penis isn’t a social construction, but a biologically/genetically constructed.

  • Meghan Stabler

    Marti,

    I believe that this post is causing unintentional attention to a non-issue. I’ve been involved in and around this Bill and fully recognize that we, as transsexuals, are covered. The wording in the Bill is different to that of ENDA for a specific reason; to be allow LE and DA’s to prosecute.

    From a Prosecutorial perspective this is good language. It gives the Department of Justice the power to investigate and prosecute bias-motivated violent crime where the perpetrator has selected the victim because of the person… Read More’s actual or perceived gender identity. The LLEHCPA (Local Law Enforcement Hate Crimes Prevention Act, sic HR 1913) adds gender identity, sexual orientation, gender and disability to existing federal hate crimes laws.

    Gender identity is defined in the LLEHCPA as “actual or perceived gender-related characteristics.” This language will cover not only gender non-conforming gay, lesbian, straight and transgender people who don’t undergo gender transition, but also those of us classed as transsexuals.

    Conversations with Department of Justice officials, congressional allies and prosecutors, makes me confident that this language explicitly covers all crimes motivated by bias against the transgender community, including transsexuals.

    Be well

    Meghan

    • Marti Abernathey

      Meghan, I’ll repeat what I said on the Obama list:

      If you look at the post I referenced from Kathy Padilla, you’ll see that she interviewed a legislative attorney who WORKS FOR BARNEY FRANK, and Padilla reported from her interview with her that:

      “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.”.

      “Passing” transsexuals like Angie Zapata weren’t murdered because of their “characteristics of gender”. She was murdered because her killer had sex with her and then started looking at her pictures and realized she was trans and murdered her. She’s being charged with a hate crime in Colorado because of the language of their hate crimes bill which is stronger (“transgender status”) than the current bill H.R.1913. The language of the bill is very important. We had a hate crimes reporting bill pass in Indiana that had no forced reporting mechanism and it has deterred passage of a hate crimes bill because of the lack of reporting. In this case, a bad bill is worse than no bill at all.

      In the last day or so I’ve been vilified, having been called a Republican by Barney Frank’s senior policy adviser. I’ve done nothing more than try to lay out the facts and let the chips fall where they may. I want to be wrong. But I’m not going to sit down and shut up because someone tells me I’m not an attorney. That was what happened in the Bush administration (eg. the Justice Department rubber stamping torture). I’d accept a well reasoned legal opinion explaining how the Zapata, Forte, or Araujo murders could be called a hate crime under this bill. I want to be included in hate crimes and in ENDA. But wanting something, and it being true are two separate issues. Wishing it so, or hoping it will be so, just doesn’t cut it.

  • Meghan Stabler

    Marti,

    I believe that this post is causing unintentional attention to a non-issue. I’ve been involved in and around this Bill and fully recognize that we, as transsexuals, are covered. The wording in the Bill is different to that of ENDA for a specific reason; to be allow LE and DA’s to prosecute.

    From a Prosecutorial perspective this is good language. It gives the Department of Justice the power to investigate and prosecute bias-motivated violent crime where the perpetrator has selected the victim because of the person… Read More’s actual or perceived gender identity. The LLEHCPA (Local Law Enforcement Hate Crimes Prevention Act, sic HR 1913) adds gender identity, sexual orientation, gender and disability to existing federal hate crimes laws.

    Gender identity is defined in the LLEHCPA as “actual or perceived gender-related characteristics.” This language will cover not only gender non-conforming gay, lesbian, straight and transgender people who don’t undergo gender transition, but also those of us classed as transsexuals.

    Conversations with Department of Justice officials, congressional allies and prosecutors, makes me confident that this language explicitly covers all crimes motivated by bias against the transgender community, including transsexuals.

    Be well

    Meghan

    • Marti Abernathey

      Meghan, I’ll repeat what I said on the Obama list:

      If you look at the post I referenced from Kathy Padilla, you’ll see that she interviewed a legislative attorney who WORKS FOR BARNEY FRANK, and Padilla reported from her interview with her that:

      “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.”.

      “Passing” transsexuals like Angie Zapata weren’t murdered because of their “characteristics of gender”. She was murdered because her killer had sex with her and then started looking at her pictures and realized she was trans and murdered her. She’s being charged with a hate crime in Colorado because of the language of their hate crimes bill which is stronger (“transgender status”) than the current bill H.R.1913. The language of the bill is very important. We had a hate crimes reporting bill pass in Indiana that had no forced reporting mechanism and it has deterred passage of a hate crimes bill because of the lack of reporting. In this case, a bad bill is worse than no bill at all.

      In the last day or so I’ve been vilified, having been called a Republican by Barney Frank’s senior policy adviser. I’ve done nothing more than try to lay out the facts and let the chips fall where they may. I want to be wrong. But I’m not going to sit down and shut up because someone tells me I’m not an attorney. That was what happened in the Bush administration (eg. the Justice Department rubber stamping torture). I’d accept a well reasoned legal opinion explaining how the Zapata, Forte, or Araujo murders could be called a hate crime under this bill. I want to be included in hate crimes and in ENDA. But wanting something, and it being true are two separate issues. Wishing it so, or hoping it will be so, just doesn’t cut it.

  • Um, that *is* a lens of fear — fear that the language will not be adequate. (I mean, come on, language is my playground, Marti, lol, you should know better than that…)

    And since I’m being told by Rep Conyers’ staff that its identical, I pulled the language up:

    `(3) the term `gender identity’ for the purposes of this chapter means actual or perceived gender-related characteristics.

    So the *real* discussion is “what is gender expression?” becuase people are *afraid* (that fear thing) that gender related characteristics may be so careful set within the confines a particular court ruling (having no really good basis other than the same kind of slippery slope arguments used by the twits trying to stop it and subject to all the same weaknesses of fallacious reasoning) so as to essential remove the idea of *expression* from it.

    Nw I agree — the language could be better, and more explicit is always an improvement, but to really get into this you have to look at the wider picture.

    What are gender related chracteristics?

    Well, based in present court rulings and understandings, we have some exa ple of elments the courts understand to be part of sex/g3nder, which, in law, are tyically conflated and therefore to our advantage often.

    For example, in PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228 (1989) , the judges noted that:

    There were clear signs, though, that some of the partners reacted negatively to Hopkins’ personality because she was a woman. One partner described her as “macho” (Defendant’s Exh. 30); another suggested that she “overcompensated for being a woman” (Defendant’s Exh. 31); a third advised her to take “a course at charm school” (Defendant’s Exh. 27). Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it’s a lady using foul language.” Tr. 321. Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” Defendant’s Exh. 27. But it was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for the Policy Board’s decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” 618 F. Supp., at 1117.

    all contributed to sex sterotyping — which is based on one’s gender expression as it conflicts with other’s expectations. So by this ruling — which is indeed still applicable in cases where a defendant is going to be fighting using the sort of argument that is being advanced ince it goes to the heart of the question — these things are all part of gender identity (since gender identity and sex in US law at the appellate level are still heavily conflated).

    Now, some might argue that Price waterhouse has been held by some lower courts to not apply to transsexuals, and when you look at the rulings that o hold, they do so on *those* court holding a difference betwen sex and gender, and in those cases gender expression will be useless, as they alredy recognize that, but the issue is tied to *sex*, and in those areas gender identity will hold as the evidenced point of order (that is, expression is assumed, and the courts rule that way becuae they interpret it as distinct from sex, and this covers and includes gender).

    This also is supported by Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004), which holds that the findings include both — so that either way, gender expression is going to be covered.

    The only time it wouldn’t be — and for good reason — would be when a business defends itself by saying something to the effect of:

    “So long as [dress codes] and some justification in commonly accepted social norms and are reasonably related to the employer’s business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women.”

    However, since most tranfolk (inclusive of crossdressers, drag queens and kings, and similar classifications but *not* including the genderqueer, androgyne, or bigendered) tend to dress within those allowance, they would indeed be enabled.

    On that ground a well, the argument that it would not cover transsexuals fails, and the argument becomes it won’t cover *the other groups* — which is still good reason to seek a language change imo, but absolutely not enough to stand up and say that transsexuals, for whom the term Gender Identity is a medical one that is *directly* applicable, being the DSM equivalent of the ICD’s Transsexualism. Note that even Zucker would not state that transsexuals are not struck by gender identity and he’s about the only reliabe expert that any defense lawyer could drag in fo the purpose of a defense. Everyone else is going to state the opposite.

    Because exression is always dependent on Gender identity, whereas identity is not dependent on expression, one cannot argue that inclusive legislation does not cover transsexuals, for whom such things are critical by and large (but not exclusively).

    So ultimately, the question of what is Gender Expression *can* be solved by using gender identity (however inaccurate it might be in *our* lives, it is still accurate enough for them), and *especially* so in the case of transsexuals, crossdressers, and other binary focused transfolk.

    But it will indeed cause issues for those who are not binary focused, and they do not deserve to be treated that poorly.

    just sayin

  • Um, that *is* a lens of fear — fear that the language will not be adequate. (I mean, come on, language is my playground, Marti, lol, you should know better than that…)

    And since I’m being told by Rep Conyers’ staff that its identical, I pulled the language up:

    `(3) the term `gender identity’ for the purposes of this chapter means actual or perceived gender-related characteristics.

    So the *real* discussion is “what is gender expression?” becuase people are *afraid* (that fear thing) that gender related characteristics may be so careful set within the confines a particular court ruling (having no really good basis other than the same kind of slippery slope arguments used by the twits trying to stop it and subject to all the same weaknesses of fallacious reasoning) so as to essential remove the idea of *expression* from it.

    Nw I agree — the language could be better, and more explicit is always an improvement, but to really get into this you have to look at the wider picture.

    What are gender related chracteristics?

    Well, based in present court rulings and understandings, we have some exa ple of elments the courts understand to be part of sex/g3nder, which, in law, are tyically conflated and therefore to our advantage often.

    For example, in PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228 (1989) , the judges noted that:

    There were clear signs, though, that some of the partners reacted negatively to Hopkins’ personality because she was a woman. One partner described her as “macho” (Defendant’s Exh. 30); another suggested that she “overcompensated for being a woman” (Defendant’s Exh. 31); a third advised her to take “a course at charm school” (Defendant’s Exh. 27). Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it’s a lady using foul language.” Tr. 321. Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” Defendant’s Exh. 27. But it was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for the Policy Board’s decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” 618 F. Supp., at 1117.

    all contributed to sex sterotyping — which is based on one’s gender expression as it conflicts with other’s expectations. So by this ruling — which is indeed still applicable in cases where a defendant is going to be fighting using the sort of argument that is being advanced ince it goes to the heart of the question — these things are all part of gender identity (since gender identity and sex in US law at the appellate level are still heavily conflated).

    Now, some might argue that Price waterhouse has been held by some lower courts to not apply to transsexuals, and when you look at the rulings that o hold, they do so on *those* court holding a difference betwen sex and gender, and in those cases gender expression will be useless, as they alredy recognize that, but the issue is tied to *sex*, and in those areas gender identity will hold as the evidenced point of order (that is, expression is assumed, and the courts rule that way becuae they interpret it as distinct from sex, and this covers and includes gender).

    This also is supported by Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004), which holds that the findings include both — so that either way, gender expression is going to be covered.

    The only time it wouldn’t be — and for good reason — would be when a business defends itself by saying something to the effect of:

    “So long as [dress codes] and some justification in commonly accepted social norms and are reasonably related to the employer’s business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women.”

    However, since most tranfolk (inclusive of crossdressers, drag queens and kings, and similar classifications but *not* including the genderqueer, androgyne, or bigendered) tend to dress within those allowance, they would indeed be enabled.

    On that ground a well, the argument that it would not cover transsexuals fails, and the argument becomes it won’t cover *the other groups* — which is still good reason to seek a language change imo, but absolutely not enough to stand up and say that transsexuals, for whom the term Gender Identity is a medical one that is *directly* applicable, being the DSM equivalent of the ICD’s Transsexualism. Note that even Zucker would not state that transsexuals are not struck by gender identity and he’s about the only reliabe expert that any defense lawyer could drag in fo the purpose of a defense. Everyone else is going to state the opposite.

    Because exression is always dependent on Gender identity, whereas identity is not dependent on expression, one cannot argue that inclusive legislation does not cover transsexuals, for whom such things are critical by and large (but not exclusively).

    So ultimately, the question of what is Gender Expression *can* be solved by using gender identity (however inaccurate it might be in *our* lives, it is still accurate enough for them), and *especially* so in the case of transsexuals, crossdressers, and other binary focused transfolk.

    But it will indeed cause issues for those who are not binary focused, and they do not deserve to be treated that poorly.

    just sayin

  • Marti Abernathey

    @Dyssonance You should look at the definition of gender identity in the bill. It’s not a lens of fear at all. It’s a weakness that’s been in the language when it passed the last time around.

    @Abby I prefer to “shoot for the moon” with the best language possible. There’s no reason for the language to be different. I never claimed that transgender people or gender variant people wouldn’t be covered, but specifically transsexuals that were murdered when their lover found out post sex act that she had a penis or used to have a penis. If you were defending a client (like in the Zapata case), you’re telling me you wouldn’t work the language of the bill and use the transpanic defense? It boils down to what a characteristic of gender is. Because that’s the definition of gender identity in the bill. There are arguments on both sides, but I think the NGLTF piece is dead on. You make it ambiguous, and you’re looking for trouble.

  • Marti Abernathey

    @Dyssonance You should look at the definition of gender identity in the bill. It’s not a lens of fear at all. It’s a weakness that’s been in the language when it passed the last time around.

    @Abby I prefer to “shoot for the moon” with the best language possible. There’s no reason for the language to be different. I never claimed that transgender people or gender variant people wouldn’t be covered, but specifically transsexuals that were murdered when their lover found out post sex act that she had a penis or used to have a penis. If you were defending a client (like in the Zapata case), you’re telling me you wouldn’t work the language of the bill and use the transpanic defense? It boils down to what a characteristic of gender is. Because that’s the definition of gender identity in the bill. There are arguments on both sides, but I think the NGLTF piece is dead on. You make it ambiguous, and you’re looking for trouble.

  • You saw the bill as it was read into the record?

    Also, in my analysis, based on the bill being identical to the previous bill of ’07 (the text of which is still present on my blog), I’m inclined to note that Gender Identity is based on a medical term, and will *defer* to such, so that if such an issue were to arise, I’m more inclined to suspect that it would mea that transsexual are covered, not everyone else.

    In short, I think you are reading it through a lens of fear, which is a mistake.

  • You saw the bill as it was read into the record?

    Also, in my analysis, based on the bill being identical to the previous bill of ’07 (the text of which is still present on my blog), I’m inclined to note that Gender Identity is based on a medical term, and will *defer* to such, so that if such an issue were to arise, I’m more inclined to suspect that it would mea that transsexual are covered, not everyone else.

    In short, I think you are reading it through a lens of fear, which is a mistake.

  • 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 – http://thomas.loc.gov/cgi-bin/t2GPO/http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h2015ih.txt.pdf). 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: http://www.thomas.gov/cgi-bin/query/z?c111:H.R.1913:.)

    Blessings,
    Abigail “Abby” Jensen

  • 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 – http://thomas.loc.gov/cgi-bin/t2GPO/http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h2015ih.txt.pdf). 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: http://www.thomas.gov/cgi-bin/query/z?c111:H.R.1913:.)

    Blessings,
    Abigail “Abby” Jensen

  • Marti Abernathey

    I’ve seen the language. There are plenty of people who have seen it, not just me. it’s not been changed. It was submitted as written.

  • Marti Abernathey

    I’ve seen the language. There are plenty of people who have seen it, not just me. it’s not been changed. It was submitted as written.

  • Its possible — though unlikely — that the bill as introduced has adapted to this, and in the end, until it is published by the GPO unless someone can provide a link to the current text, that this entire concern may be unimportant.

    I will be following this in depth — and I find the comments by Conyers to be interesting and quite typical of the viewpoint of the public.

  • Its possible — though unlikely — that the bill as introduced has adapted to this, and in the end, until it is published by the GPO unless someone can provide a link to the current text, that this entire concern may be unimportant.

    I will be following this in depth — and I find the comments by Conyers to be interesting and quite typical of the viewpoint of the public.