The recent passage of legislation repealing the military’s infamous “Don’t Ask Don’t Tell” policy, which since 1993 told gay and lesbian servicemembers the could serve only if no one knew or they didn’t reveal their sexual orientation, is already being lauded by many as the definitive LGBT achievement of President Barack Obama’s first two years in office.
As we approach the halfway point of Obama’s four-year presidential term and a major shift of power in Congress, we are presented with an opportunity to step back and take another look at the other piece of pro-LGBT federal legislation signed into law over these past two years.
Congress passed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act on Oct. 22, 2009, and was signed into law shortly thereafter by President Obama. The bill took a powerful step to revise existing federal hate crime law to include crimes motivated by a victim’s actual or perceived sexual orientation, gender, gender identity or disability.
For the first time, it allowed federal authorities to investigate claims local law enforcement agencies chose not to pursue. It also offered funding to help state and local agencies to investigate claims. Finally, the bill is significant in extending the first federal protections of transgender people.
But not all LGBT activists have applauded the legislation as little more than symbolic, politically-motivated gesture to the community.
Fourteen months since the legislation was signed into the law, many remain skeptical the law has helped to dissuade hate violence against LGBT people, particularly given the federal government’s mixed message on LGBT equality as legislation like the Defense of Marriage Act (DOMA) still stand and federal employment protections for the community (as outlined in the Employment Non-Discrimination Act) have been shelved for the foreseeable future for all intents and purposes.
It’s the eve of the new era of the LGBT political movement. And the Southern Poverty Law Center recently published a report that claims gay and lesbian people have, based on FBI data, been the minority group most often targeted by hate violence.
So maybe it’s time to investigate the efficacy of the hate-crime designation. EDGE spoke with a number of leading voices on anti-LGBT hate violence and bias crimes. The goal: To assess the early impact of queer-inclusive federal hate crimes laws and what obstacles and opportunities lie ahead for activists working to end violence against gay, lesbian, bisexual and transgender people across the country.
Hate crimes victory was hard fought
Last year’s successful passage of the Shepard and Byrd Jr. Act came as the result of decades of groundwork, dating at least back to President George H.W. Bush’s signing of the Hate Crimes Statistics Act. The act required the Federal Bureau of Investigation to track the incidence of hate crimes committed on the basis of sexual orientation and specifically indicating federal funds were not to be used to “promote or encourage homosexuality.”
The brutal murder, in 1998, of 21-year-old student Shepard provided a vivid example not only of the violence facing many queer people then, but also of the limited legal protections available to LGBT Americans. This was particularly the case for people, like Shepard, living in states like Wyoming that did not recognize LGBT people as a protected class. The Shepard tragedy granted an increased profile for hate crimes legislation and, in 2001, it was first introduced in the House of Representatives. The law was eventually introduced four times prior to its success last year.
Michael Lieberman, Washington Counsel of the Anti-Defamation League, an organization that was one of many groups active in lobbying for the legislation, described the passage as presenting “a dramatic opportunity to change the frame with which we deal with these types of violent crimes” and is confident the law will help deter such crimes against LGBT people and the other newly protected classes.
Lieberman said, while acknowledging there is a learning curve to be considered, the law’s implementation has been going at an acceptable pace. He is aware of many training sessions being held for federal prosecutors and investigators, as well as state and local police, to learn how to identify and accurately investigate sexual orientation- and gender identity-based bias crimes.
“It’s critically important to have these laws,” Lieberman said. “We should be able to call a crime what it is and there’s something very powerful and empowering [about that].”
Thus far only one crime — a mentally disabled 22-year-old Navajo man who was branded with a Swastika by three men in Farmington, N.M., last November — has resulted in charges under the new law. Lieberman maintained that that point is moot. It was never expected, he said, that the law would pertain to many cases.
The vast majority of hate crime claims are investigated without such charges being pursued at both the federal and state level. Such claims are often difficult to prove and, as 45 states and the District of Columbia already have their own hate crimes laws, federal intervention is often not necessary.
“But we really felt like it was critically important for the federal government to have backstop authority on cases state and local governments can’t or won’t do,” Lieberman added.
Dodging inequality’s core?
Nearly all activists certainly acknowledge that hate crimes recognition carries some usefulness in addressing extreme forms of violence such as Shepard’s 1998 murder. Nevertheless, , some question the message the legislation sends in the midst of a political environment that has not allowed for federal LGBT employment protections — and that continues to draw a legal distinction between opposite-sex and same-sex relationships via a law like the federal Defense of Marriage Act.
Andy Thayer, co-founder of the Chicago-based Gay Liberation Network, doesn’t mince words in describing the legislation. “Problematic” he calls it; also, a “cowardly, political dodge from the core of the issue” on the part of the lawmakers and organizational heads that fought for it.
“It’s a real problem that, if you have a federal government that explicitly discriminates against LGBT people, it sends the message to those who would discriminate with a baseball bat that it’s probably OK to do so,” Thayer told EDGE. “The Democrats are almost complicit in [that sort of violence] … and many in the LGBT community have fallen for it.”
Further, Thayer holds the view that hate crimes legislation grants further leverage to the federal government’s troubling high level of incarceration which, he said, tends to revictimize minority groups, particularly African-Americans and LGBT people. Considering the history of the black civil rights movement, Thayer added it wasn’t until Jim Crow laws were, by and large, overruled by Brown v. Board of Education in 1954, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that lynching and harassment toward that community began to decrease.
“This whole notion that hate crimes legislation is the way to go in fighting against things like Matthew Shepard’s lynching is wrong,” Thayer added.