Sep 26, 2003   | COMMENTS     

LAST MONTH, THREE transgendered youths were shot in the District.

Emonie Kiera Spaulding, age 25, died Aug. 20, and Bella Evangelista, also 25, died Aug. 17. The shootings occurred about one year after the murders of two other D.C. transgendered youth: Ukea Davis, 18, and Stephanie Thomas, 19.

These crimes are tragedies, and they will undoubtedly induce calls for new hate crime legislation with gender bias provisions. (D.C. already has such a law.)

But hate crime laws are the wrong approach for stemming violence against transgendered people. Though well intentioned, hate crime laws limit free speech, and turn law enforcement officers into thought police.

As a male-to-female transgendered person, I do not want special legal status. I only expect the same protections accorded to other Americans.
If I’m shot for greed, lust or money, my assailant goes to prison for 10 years. But if I’m shot because of bias, some argue my assailant should get a stiffer sentence.

MOST STATES ALREADY have legislation providing for greater punishment for crimes motivated by race, religion or sexual orientation. D.C. and several other states (California, Minnesota, Missouri, New Hampshire, New Mexico, and Pennsylvania) have hate crime laws covering acts motivated by gender identity.

The federal hate crime law does not currently cover gender bias crimes. On Jan. 7, Sen. Tom Daschle (D-S.D.) introduced the Equal Rights & Equal Dignity for Americans Act of 2003. Title I of the Act would amend the federal hate crime statutes to cover offenses motivated by bias against “actual or perceived” gender. The bill would also add gender bias to the list of hate crime statistics the FBI compiles.

But why should a crime be punished more severely when motivated by bias? Police already must judge intent when deciding whether a crime is willful when, for instance, deciding whether a criminal death is a murder or manslaughter. Once intent is determined, hate crime laws require law enforcement officials also determine motive.

This burdens the criminal justice system, and gives police and prosecutors unneeded discretion. Punishment should be based on the harm a crime inflicts on society — not the subjective evaluation of law enforcement as to whether a crime was bias-motivated.

Hate crime laws also create a double standard of justice based on the political correctness du jour. If increased sanctions for bias-motivated crimes are a good idea, why stop with bias based on race, religion, sexual orientation, or sexual identity?

I was chubby as a child, and I was often teased, and sometimes hit due to my weight. Where were the thought police when I needed them? If only we had hate crime laws with fat bias provisions!

SOME ARGUE THAT increased penalties for bias-motivated crimes are warranted because they are intended to intimidate an entire group of people — not just the individuals attacked. But any crime is by definition an act against society.

That is what separates crimes from torts. If you accidentally hurt me, even seriously, it affects others little. But if you intentionally injure me, it can pressure other people to take precautions to protect themselves.

How many genetic females who have never personally been attacked avoid certain areas, especially at night, or carry protection such as whistles, pepper spray or guns? Proving the social cost is greater for bias-motivated crimes compared to other crimes would be extremely difficult.

And like all laws, hate laws are also open to interpretation. For instance, what types of intimidation are hate crimes?

Supporters of such laws would agree that they intended cross burning to be a hate crime. But what types of gender intimidation constitute hate crimes? If someone calls me faggot or queer when I’m dressed in public, I’m intimidated. But I wouldn’t prosecute. Yet I’m sure a lawyer somewhere would be willing to try.

Hating people because of their gender identity is unfortunate, but it should not be criminal. The First Amendment protects the rights of other Americans to think and speak in ways we find offensive, and existing laws are sufficient to punish violent acts, regardless of motive.

Instead of demanding special status for politically favored groups, let’s work to make sure existing laws are enforced fully and equally for all citizens.

Bailey A. Graves is treasurer of the TransGender Education Association, but her views do not reflect those of the D.C. support group; she can be reached at baileyag@earthlink.net.