July 29, 2009

When the managers at an ice cream parlor in upstate New York harassed a transgender woman by calling her names and locking the door when she tried to enter the store, the police took action.

They arrested the trans woman for trespassing.

The Sylvia Rivera Law Project, an organization providing legal services for low-income people and trans people of color, tried to advocate for the woman but couldn’t because the state’s human rights law doesn’t include protections for gender identity. This might change if a proposed state bill passes.

The Gender Expression Non-Discrimination Act (known as GENDA) would protect people who are routinely kicked out of housing, fired from jobs and harassed in schools and other public institutions because of their gender expression. The bill has passed the state assembly and is up for a vote on the Senate floor. Thirteen other states and the District of Columbia have already enacted similar legislation.

But a group of queer justice organizations is not supporting the bill because it would also add “gender identity and expression” to the list of hate crime offenses and result in longer prison terms. Because the same communities vulnerable to violence face increased policing, it’s a move that would “expose our communities to the inherent racism and classism that is rooted in the criminal justice system,” said Pooja Gehi, staff attorney at the Sylvia Rivera Law Project, which opposes the hate crime portion of the proposed bill.

Half of the inmates in New York state prisons are Black and about a quarter are Latino.

Advocates also point out that many trans people are not just the victims of individual crimes but also of police who particularly target trans women of color doing street-based sex work. These violations wouldn’t be covered by a hate crime law.

Five groups, including FIERCE and the Audre Lorde Project, have written an open letter to the bill’s supporters opposing the hate crime component of GENDA. If the bill doesn’t pass this year, Gehi said, the groups hope to work with the bill’s supporters to develop one that does not include the hate crime legislation.

Advocates are also calling for alternative approaches.
“People tend to say, ‘This kid got beat up because he was gay, or she was trans’—but people don’t get beat up because they are gay or trans. They get beat up because the perpetrator is homophobic or transphobic,” said Kim Fountain, who works with the Anti-Violence Project, which provides counseling and advocacy for LGBT survivors of violence. 

She pointed out that groups like hers and Audre Lorde Project’s Safe Outside the System collective are addressing the violence by using models of community accountability that don’t rely on police. They’re hoping more organizations will begin to move in this direction.